RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050014639


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her reentry eligibility (RE) code of 1 be
restored and the reason for her separation be changed.

2.  The applicant states that her Reserve Officers’ Training Corps (ROTC)
contract states that if the service member honors all terms of the contract
and is not offered a commission, he or she may elect to leave the service
without penalty, provided he or she was not a scholarship recipient.  She
was not a scholarship recipient and she did comply with all terms and
regulations required by that contract to include disclosure of facts that
were found to render her ineligible prior to and while contracted.

3.  The applicant provides her ROTC contract; her original discharge
orders; amended discharge orders dated 19 August 2002; her National Guard
Bureau (NGB) Form 22E (Report of Separation and Record of Service);
overseas deployment training orders; a memorandum dated 10 November 2005;
and a memorandum dated 31 May (year illegible).

CONSIDERATION OF EVIDENCE:

1.  On 15 August 1999, the applicant was found guilty of the illegal
possession of marijuana and was placed on probation for 3 years, given
community service, and ordered to pay a fine.  She later requested early
termination of her probation.

2.  By letter dated 8 June 2001, the applicant’s probation officer granted
her permission to travel out of state to Fort Knox, KY for ROTC basic camp.


3.  By letter dated 11 June 2001, an Assistant Professor of Military
Science (PMS) recommended a civil conviction waiver for the applicant.  The
letter noted the applicant was convicted of marijuana possession in July of
1999, was currently on probation for that conviction, and that her
probation would be completed in September 2001.  The applicant had admitted
that she also tried marijuana once in high school, when she was about 15.
This request for waiver was apparently never acted upon.

4.  On 27 July 2001, the applicant signed a DA Form 597 (Army Senior
Reserve Officers’ Training Corps (ROTC) Nonscholarship Cadet Contract).
Paragraph 2a of the form indicated the applicant understood that, by
executing this contract, she represented that she met all eligibility
criteria for enrollment in the ROTC Program and commissioning, as defined
by statute, Army regulation and the contract.  If she was ineligible for
enrollment in ROTC or commissioning and such ineligibility could be waived,
she must obtain an approved waiver before the contract could be validated
by the PMS.

5.  Paragraph 11 of the applicant’s ROTC contract stated she understood
that if she successfully completed all of the requirements for appointment
and met all the physical, mental, moral, and proficiency standards required
of a commissioned officer, but was not tendered an appointment, she would
be completely discharged from all obligations she incurred under the
provisions of the contract.

6.  In Part V of the DD Form 597-E, the applicant’s PMS indicated that he
had selected and enrolled the applicant as a cadet in the ROTC program
effective   27 July 2001.

7.  On 21 August 2001, the applicant enlisted in the Army National Guard
(ARNG) (apparently the Simultaneous Membership Program).  On her DD Form
1966/2 (Record of Military Processing – Armed Forces of the United States),
item 26 (Drug use and abuse, Have you ever tried or used or possessed any
narcotic…(to include marijuana…) except as prescribed by a licensed
physician), the applicant checked “NO.”  This may have been an oversight,
as on her Security Questionnaire, she checked in items 24, 26, and 39 that
she had a police record (with probation and community service) for a drug-
related offense.

8.  On 20 September 2001, the applicant was released from probation.

9.  On the applicant’s Cadet Command Form 139-R (Cadet Enrollment Record
(CC Pam 145-3), dated 29 January 2002, the applicant indicated that she had
been involved in civil criminal proceedings.  She indicated that she had
used illegal substances or drugs only on an experimental or limited basis
prior to (the date is mostly illegible), less than 10 times.

10.  On the applicant’s Cadet Command Form 139-R, in section 6, item 2, the
eligibility enrollment officer checked that the applicant required a
waiver, prior to contracting, for a civil conviction.  He indicated the
waiver was granted on 3 July 2001.  In section 6, item 4, the eligibility
enrollment officer checked that the applicant did not need a waiver for
substance abuse (due to self-admitted limited, experimental use of chemical
substances or drugs which occurred over 6 months prior to contracting).  At
the end of the form, the enrollment officer indicated the applicant was
eligible (“fully or by waiver”) for the ROTC basic course and advanced
course.

11.  An ROTC Cadet Command Form 131-R (Cadet Action Request) was prepared
on 8 March 2002 requesting the applicant be given a waiver for civil
conviction.  The PMS (LTC L___) recommended approval of the request.

12.  The notice of disenrollment is not available.  Apparently
disenrollment action was initiated on 13 June 2002.  A Summary of
Disenrollment stated the reason for the breach of contract and
disenrollment was Army Regulation 145-1, paragraph 3-43a(11), due to the
discovery of a fact that bars her from commissioning.  Her ARNG unit chain
of command recommended approval of a waiver for her civil conviction.  Her
ROTC brigade commander recommended disapproval.

13.  On 17 June 2002, the applicant was discharged (as an enlisted Soldier)
from the ARNG for erroneous enlistment or extension.  Her NGB Form 22E
shows she was given an under honorable conditions characterization of
service; a narrative reason for separation of erroneous enlistment or
extension; and an RE code of 1. State of California, Office of the Adjutant
General Orders 190-1121 dated 9 July 2002 show the applicant was discharged
from the ARNG and as a Reserve of the Army effective 17 June 2002 with a
type of discharge of general under honorable conditions and an RE code of
1.  These orders were amended by State of California, Office of the
Adjutant General Orders 211-1019 dated           19 August 2002 to change
the type of discharge to uncharacterized.  A corrected NGB Form 22E is not
available and it cannot be determined if one was prepared.

14.  On 1 July 2002, a formal disenrollment board was held.  The recorder
noted that Cadet Command (CC) Pamphlet 145-4, chapter 2, section 2-20,
paragraph c states, “Applicants for enrollment must disclose any arrests,
charges, or detention by authorities even if the charge was subsequently
dismissed…Failure by the applicant to do so, even if so advised by parents
or counsel, will result in disenrollment.”  He noted that, in accordance
with CC Pamphlet 145-4, paragraph 7-8a(1)(c), the applicant voluntarily
failed to complete the requirements of the ROTC Cadet Contract by, in
effect, being on probation.  He noted that, in accordance with CC Pamphlet
145-4, section II, “chapter 3-4, paragraph 3,” the applicant had the
responsibility for personally initiating any request for waiver of
enrollment eligibility requirements.

15.  The recorder also noted that, however, CC Pamphlet 145-4, section II,
chapter  6-10f(2) states waivers will not be supported for students
sentenced to periods of supervised probation or suspended sentences, and
whose periods of probation, suspension or deferment have not yet expired.
Therefore, even if the applicant requested a waiver, it would not be
supported until her supervised probation was completed on 22 November 2003
[or with the actual termination of her probation on 20 September 2001].
16.  The recorder noted that the first evidence of cadre involvement in the
applicant’s case was 7 months after the original probation order, with the
Assistant PMS’s memorandum dated 11 June 2001.  The recorder then noted
that the first documented evidence that the applicant disclosed her civil
conviction was 13 months after the probation order, when the Cadet Command
Form 139R was signed on 29 January 2002.  The recorder stated, “This is
also the first time (the applicant) revealed her limited use of illegal
substances.”  The recorder noted that the applicant did not obtain approval
for her civil conviction waiver, and she could have applied for a supported
waiver when her probation was terminated on 20 September 2001.  A waiver
was submitted on 8 March 2002, and there was no evidence the waiver was
ever approved at Cadet Command after nonconcurrence at Third Brigade on 13
June 2002.

17.  The applicant testified by stating she was under the impression that
her waiver was approved and that she should not be penalized due to the
cadre misinforming her [otherwise].

18.  On 3 July 2002, the board recommended the applicant be disenrolled
from the ROTC Program.

19.  On 25 July 2002, the applicant provided a rebuttal and requested
reconsideration.  She rebutted that the argument of disenrollment under the
provisions of Army Regulation 145-1, paragraph 3-43a(11) was not supported
because drug-related civilian convictions do not render a cadet ineligible
from accepting a commission.  She noted that under the provisions of Army
Regulation 135-100, paragraph 1-8, a civilian drug possession conviction
could be waived for an officer candidate.  Moreover, the ROTC command did
not discover anything [new]; she was completely forthcoming prior to even
being enrolled in the program.  When she was enrolled and sent to camp with
orders, she was ostensibly granted a waiver.

20.  The applicant rebutted that the issue of an unlawful contract or
ineligibility for a waiver was outside the scope of the grounds for the
disenrollment as stated in the disenrollment notice.  If the issue was an
unlawful contract or enrollment, she should have received full and fair
notice and opportunity to have an investigation on that issue.  She also
rebutted that the waiver argument was moot.  The Army (through her PMS)
indicated the waiver was granted, both verbally and in writing. The time
for the Army to follow through [on determining whether she was eligible for
a waiver] was at her initial application for entry into the program, not
after her contract was executed.  She had a detrimental reliance on the
understanding that a waiver had been granted, and she had entered in a
valid contractual agreement.

21.  By letter dated 18 July 2003, the applicant was disenrolled from ROTC
under the provisions of Army Regulation 145-1, paragraph 3-43a(11) based on
the discovery of a fact, civil conviction for possession of cannabis, which
barred her from commissioning.

22.  The applicant enlisted in the ARNG on an unknown date.  A California
ARNG memorandum for record dated 12 November 2004 shows she was dropped
from Officer Candidate School and released without prejudice.  An NGB
memorandum dated 10 November 2005 indicates she was granted a civil
conviction waiver, apparently for appointment as an officer.  Orders dated
       20 April 2006 show she was ordered to active duty in an Active Guard
Reserve status as an enlisted Soldier.

23.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, NGB.  That office stated the applicant’s original
NGB Form 22E (they did not provide a corrected NGB Form 22E or indicate
that a corrected copy had been issued) was in error in regard to her RE
code.  Per National Guard Regulation 600-200, paragraph 8-26g(2), she
should have been given an RE code of 3.  That office also stated that the
reason for her discharge (apparently meaning the characterization of
service) was in error and had to be corrected.  Per Army Regulation 135-
178, paragraph “7d(2)” (i.e., 7-2d(2)), her separation should have been
described as a release from custody and control of the Army and her service
should not have been characterized.

24.  The advisory opinion also stated that the applicant did not provide
proof that she disclosed her civil conviction at the time of her
enlistment, so there was no reason to change the reason of her separation
from “erroneous enlistment or extension.”  Therefore, that office
recommended disapproval of the applicant’s request.

25.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  It appears she responded to NGB rather than to the
Board.  She stated she was providing documents to verify her statement that
her requirement for a waiver was a well-known fact at the time of her
enrollment into the ROTC Program.  The only defense she had for the
paperwork errors or inconsistencies was that she was very new to the
military and acted on the advice of others, both in the ROTC and in the
California ARNG.

26.  CC Pamphlet 145-4, paragraph 1-1 (Purpose) states the pamphlet is to
provide guidance for the battalion command/PMS to use in the management of
cadets and processing cadet actions for enrollment, retention, and
disenrollment. Paragraph 1-3 (Responsibilities), subparagraph 1-3c(1)
states brigade commanders are responsible for ensuring battalion
commanders/PMS comply with the regulation and procedures addressed in this
publication.  Subparagraph 1-3d(1) states battalion commanders/PMS are
responsible for verifying the eligibility of students who are seeking entry
into the basic course and contracting in the ROTC program.  Paragraph 1-
3d(4) states battalion commanders/PMS are responsible for ensuring
requirements for waivers and exceptions to policy pertaining to enrollment
or retention are initiated as soon as the requirement becomes known,
initiated by the cadet concerned, fully justified, properly documented, and
administratively correct before being forwarded.  Paragraph   1-3d(5)
states battalion commanders/PMS will conditionally contract only those
nonscholarship cadets whose eligibility is waivable and still pending.

27.  CC Pamphlet 145-4 does not list any responsibilities for the cadet or
prospective cadet in paragraph 1-3.  Paragraph 2-36a(2) states that
applicants for enrollment must disclose any arrests, charges, or detention
by authorities even if the charge was subsequently dismissed, set aside,
sealed, or expunged from the record.  Failure to do so, even if so advised
by parents or counsel, will result in disenrollment.

28.  CC Pamphlet 145-2, paragraph 2-36a(8)(b) states that, except in
exceptional cases, a waiver will not be supported for students sentenced to
periods of supervised probation and whose period of probation has not yet
expired.

29.  CC Pamphlet 145-4, paragraph 2-10b(3) states that nonscholarship
students will not be allowed to conditionally contract if they have not
completed the periods of supervised probation or deferred or suspended
civil conviction sentence.

30.  On 7 July 2006, the U. S. Army Cadet Command informed the Board
analyst that it appeared the disenrollment board recorder in the
applicant’s case used the old version of CC Pamphlet 145-4 when he cited
specific paragraphs.

31.  Army Regulation 145-1 prescribes policies and general procedures for
administering the Army’s Senior ROTC Program.  Paragraph 3-43a(11) states
that a nonscholarship cadet will be disenrolled when it is discovered that
a fact or condition exists that will bar a cadet for appointment as a
commissioned officer, to include a positive urinalysis for drug and alcohol
abuse.

32.  Army Regulation 135-100 establishes responsibility and provides
procedures for the appointment of commissioned and warrant officers in the
Reserve components of the Army.  It does not govern appointments of
graduates of Senior ROTC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention, in her rebuttal to the disenrollment
action,         that disenrollment under the provisions of Army Regulation
145-1, paragraph     3-43a(11) was not supported because drug-related
civilian convictions do not render a cadet ineligible from accepting a
commission, has been carefully considered.

2.  It is acknowledged that Army Regulation 135-100 may authorize a waiver
for a civilian drug possession conviction.  However, Army Regulation 135-
100 does not govern the appointment of graduates of Senior ROTC and thus
this regulation is not applicable in her case.

3.  It is also acknowledged that the ROTC command “did not discover
anything new.”  The Assistant PMS’s 11 June 2001 letter recommended a civil
conviction waiver for the applicant and noted that she was convicted of
marijuana possession in July of 1999, that she was currently on probation
for the conviction, and that her probation would be completed in September
2001.  That letter appears to be ample evidence that she indeed was
completely forthcoming prior to being enrolled in ROTC.

4.  Unfortunately for the applicant, it appears the PMS did not follow up
on that request for a waiver.  He was not the waiver authority; Cadet
Command was.  It appears he did not give her the appropriate forms to fill
out to request a waiver until March 2002.  The Army is not liable for the
erroneous actions of its officers, agents, or employees, even though
committed in the performance of their duties.
Although the primary fault appears to lay with her PMS, the contract she
entered into was invalid because she had not received the required waiver.
Her PMS should not have allowed her to conditionally contract because she
had not yet completed her probation.

5.  The applicant’s contended, in her application for correction of her
records, that her ROTC contract states that if she honored all terms of the
contract and was not offered a commission, she could elect to leave the
service without penalty, provided she was not a scholarship recipient.  She
stated she was not a scholarship recipient and she did comply with all
terms and regulations required by that contract.

6.  Regrettably, and again not through her own fault, the applicant did not
comply with all of the terms of the ROTC contract.  Paragraph 2a of the
contract indicated that if she was ineligible for enrollment in ROTC and
such ineligibility
could be waived, she must obtain an approved waiver before the contract
could be validated by the PMS.  Again, unfortunately, her PMS erroneously
validated her contract without realizing she was not eligible for a waiver
at the time the contract was signed.

7.  Although the applicant stated she had a detrimental reliance on the
understanding that a waiver had been granted, she provides no evidence to
show how she was harmed by that reliance.

8.  During the applicant’s disenrollment board, the recorder noted the
applicant had the responsibility for personally initiating any request for
waiver of enrollment eligibility requirements.  He noted that applicants
for enrollment must disclose any arrests, charges, or detention, by
authorities even if the charge was subsequently dismissed.

9.  The recorder went on to note that the first evidence of cadre
involvement in the applicant’s case was 7 months after the original
probation order, with the Assistant PMS’s memorandum dated 11 June 2001.
He then went on note that the first documented evidence that the applicant
disclosed her civil conviction was 13 months after the probation order,
when she signed the Cadet Command Form 139R on 29 January 2002.  The
recorder stated, “This is also the first time (the applicant) revealed her
limited use of illegal substances.”

10.  The recorder obviously contradicted himself when he did not
differentiate between noting the June 2001 evidence of cadre involvement
(which clearly showed the applicant did disclose her civil conviction) and
then stating the applicant first revealed her limited use of illegal
substances in January 2002.  January 2002 may have been the first time a
higher level of command was aware of her civil conviction, but the
recorder’s sophistry does not hide the fact the applicant did disclose her
conviction in accordance with CC Pamphlet 145-4.

11.  CC Pamphlet 145-4 states a PMS is responsible for ensuring
requirements for waivers and exceptions to policy pertaining to enrollment
or retention are initiated as soon as the requirement becomes known and
initiated by the cadet concerned.  The applicant complied with the
requirements of paragraph 2-36a(2) of the Pamphlet when she told the PMS or
the Assistant PMS she had the civil conviction.  It was then the PMS’s
responsibility to properly document the waiver and ensure it was
administratively correct before forwarding it (or to discover she was not
eligible for a waiver).

12.  The PMS could have initiated a request for a waiver once the
applicant’s probation was completed.  He did not.  It was not initiated
until March 2002 and subsequently Cadet Command did not approve a waiver
for the applicant.  This Board will not substitute its judgment for that of
Cadet Command.

13.  Since it seems the applicant enlisted in the ARNG so she could attend
ROTC, and because her ROTC contract was invalid (even though through no
fault of her own), it appears the narrative reason for her discharge
(erroneous enlistment or extension) from the ARNG on 17 June 2002 was
correct.  Also, her original NGB Form 22E already shows her RE code as 1,
and it does not appear that a correct copy of her NGB Form 22E was
prepared.

14.  However, the applicant’s NGB Form 22E shows she was given an under
honorable conditions characterization of service.  State of California,
Office of the Adjutant General Orders 211-1019 dated 19 August 2002 later
amended her original separation orders to correctly show the type of
discharge as uncharacterized.  A corrected NGB Form 22E should be prepared
(if not already done so) to show her correct characterization of service.
Although it would normally then be appropriate to change her RE code from 1
to RE code 3, the applicant has already reenlisted in the ARNG.  To correct
her RE code would serve no useful purpose, and it would be equitable to
allow her RE code to remain as a 1 as an exception to policy.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__jtm___  __jcr___  __eem___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all the state Army National Guard records and all
Department of the Army records of the individual concerned be corrected by
amending her NGB Form 22E for the period ending 17 June 2002 to show her
character of service as “uncharacterized” (while retaining the reenlistment
eligibility code of 1).

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
correcting her NGB Form 22E for the period ending 17 June 2002 to change
the narrative reason for separation.




                                  __John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014639                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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