RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 December 2006
      DOCKET NUMBER:  AR20060006440


      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             |
|     |Ms. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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, in effect, that his retired rank/grade be
changed from Private/E-1 to Master sergeant (MSG/E-8) and reinstated in the
Army National Guard (ARNG).

2.  The applicant states, in effect, that he has kept his record clean for
20 years and made one mistake and has established himself in society very
successfully.

3.  The applicant provides a copy of his statement of retirement points,
separation proceedings, and reduction orders, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records shows he enlisted in the Indiana ARNG (INARNG)
on 3 September 1985, for training in military occupational specialty (MOS),
73C, Finance Specialist, with prior U.S. Army Reserve (USAR) service.

2.  The applicant was promoted to MSG/E-8 effective 1 December 2000.

3.  On 27 March 2003, the State of Indiana, Military Department, Office of
the Adjutant General, notified the applicant that he had completed the
required years of service to be eligible for retired pay, on application,
at age 60 (20-Year Letter).

4.  The applicant's Summary of Retirement Points shows he completed
20 years of qualifying service for retirement purposes.

5.  Charges were preferred against the applicant for disobeying a lawful
order or regulation and for wrongfully using cocaine on two occasions, as
indicated in his request for discharge.  The charge sheet is unavailable
for review.

6.  On 22 March 2004, the applicant voluntarily submitted a request for
discharge in lieu of trial by court-martial.  In his request the applicant
stated he understood he could request discharge in lieu of trial by court-
martial because charges had been filed against him under the Uniform Code
of Military Justice (UCMJ), which could authorize the imposition of a bad
conduct or dishonorable discharge.  He added that he was making his request
of his own free will and had not been subjected to coercion whatsoever by
any person.  The applicant stated he had been advised of the implications
that were attached to his request and by


submitting his request, he acknowledged that he was guilty of the charge
against him or of a lesser or included offense which also authorized the
imposition of a bad conduct or a dishonorable discharge.

7.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
counsel.  He consulted with counsel on the same date and was fully advised
of the nature of his rights under the UCMJ.  Although he was furnished
legal advice, he was informed that the decision to submit a request for
discharge in lieu of trial by court-marital was his own.

8.  The applicant stated that he understood that if his request were
accepted, he could be discharged under other than honorable conditions,
including but not limited to reduction to the lowest enlisted grade (PVT/E-
1), by operation of law.   He was advised and understood the effects of an
under other than honorable conditions discharge and that issuance of such a
discharge could deprive him of many or all Army benefits that he might be
eligible for, that he might be ineligible for many or all benefits
administered by the Veterans Administration [now the Department of Veterans
Affairs], and that he might be deprived of his rights and benefits as a
veteran under both Federal and state law.  He also understood that he could
expect to encounter substantial prejudice in civilian life because of an
under other than honorable conditions discharge.

9.  On 24 March 2004, the separation authority approved the applicant's
request for discharge and directed that he be furnished an UOTHC discharge
and that he be reduced to the lowest enlisted grade. 

10.  The applicant was reduced from MSG/E-8 to PVT/E-1 effect 26 March
2004.

11.  The applicant was discharged under honorable conditions, general
discharge, from the INARNG in the rank/pay grade, Private/E-1, on 2 April
2004 and was transferred to the Retired Reserve.  He had completed a total
of 20 years, 8 months, and 16 days of total active Federal service and
21 years and 11 days of total service for retired pay.






12.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 10 of that regulation provides, in
pertinent part, that a member who has committed an offense, or offenses,
for which the authorized punishment includes a punitive discharge, may at
any time, after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

13.  National Guard Regulation (NGR) 600-200 governs procedures for
enlisted personnel of the Army National Guard.  Paragraph 8-26 covers
reasons, applicability, codes, and board requirements for administrative
discharges from the Reserve of the Army and/or the State ARNG.  Paragraph 8-
26e(2)a pertains to acts or patterns of misconducts.  It states that first-
time drug offenders in the grade of SGT and above, and all Soldiers with
3 or more years of total military serve, regardless of component, must be
processed for discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, in
lieu of trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
applicant’s request for discharge was made under coercion or duress.

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  The applicant was aware of the consequences as first time drug
offender, as a senior Noncommissioned Officer serving in the rank and pay
grade of MSG/E-8, with over 20 year of total active Federal service.
However, he elected to apply for separation in lieu of trial by court-
martial.

4.  Paragraph 4 of the request for discharge the applicant submitted
specifically stated that he could expect to be reduced to the lowest
enlisted grade by operation of law.






5.  The applicant contends that he kept his record clean for 20 years and
made one mistake.  There was no evidence of other derogatory information
contained in the applicant's record.  It is evident that he made a major
mistake which cost him his career as a senior NCO by using an illegal drug
and failing to set an example for others to follow.  He also contends that
he has established himself in society very successfully.  However, this
contention was not supported by the applicant and it does not support a
change in the Army's decision.

6.  The evidence shows that the applicant received a 20-year Letter,
completed over 20 years of qualifying service for retirement purposes, and
was transferred to the Retired Reserve, and remains eligible to apply for
retirement benefits upon reaching age 60.

7.  Based on the foregoing, and accordance with regulatory authority, he
is not entitled to a change/adjustment of his rank and pay grade of PVT/E-
1 to MSG/E-8, his original rank, prior to his misconduct.  He is also not
entitled to reinstatement in the INARNG.

8.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_ALR____  ___QAS_  _FCJ____  DENY APPLICATION










BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  _____Allen L. Raub _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006440                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061212                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20040402                                |
|DISCHARGE AUTHORITY     |AR ngr 600-200, chapt 8, para 8-26e(2)  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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