RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2007
      DOCKET NUMBER:  AR20070004969


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Mr. Qawiy 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 that his reenlistment eligibility (RE) code be
changed from RE code 3 to RE code 1 and that he be released from the
Retired Reserve and allowed to enlist in the Army National Guard (ARNG).

2.  The applicant stated, in a 19 October 2005 statement to the “Retirement
Board,” that the Army is his life.  His physical condition is the envy of
many men his age and some younger Soldiers.  He has been married to a full-
time Soldier for 24 years now.  They have a son who was a full-time Soldier
for 3 years.  His wife moved around a lot.  At each new unit he reported to
he was assigned the most difficult duties.  He spent more time in [his
last] unit than any other unit.  They promoted him and put him in key
positions.  He was just getting started when he tested positive for drugs.
He requested to go to the review board, but he never did and he was
discharged and enslaved in retirement.  He went to the Army Discharge
Review Board (ADRB) and got this matter taken care of.

3.  In an undated letter to his Senator, the applicant stated he does not
do drugs. He and his unit were shocked when he failed a urinalysis.  He
believes the Texas ARNG (TXARNG) was just doing its job when he was
processed for discharge, but there was a mistake.  He has never done drugs.


4.  The applicant provides active duty special work (ADSW) orders, dated
     29 September 2001; his discharge packet; his notification of
eligibility for retired pay at age 60 (his 20-year letter); a National
Guard Bureau (NGB) Form            22 (Report of Separation and Record of
Service) and a corrected NGB Form      22; a DD Form 293 (Application for
the Review of Discharge or Dismissal from the Armed Forces of the United
States) with related letters from the Army Review Boards Agency; discharge
orders, dated 8 May 2003 with orders, dated 5 May 2005, revoking those
discharge orders; orders, dated 5 May 2005, assigning him to the Retired
Reserve; a memorandum, dated 17 May 2005, from the TXARNG G1; a letter,
dated 14 July 2005, from the Review Boards Agency Support Division; an
undated letter to his Senator; a letter, dated 27 October 2006, from the TX
National Guard, Office of the Inspector; a DA Form 1559 (Inspector General
Action Request), dated 17 October 2006, with Case Notes and a 2-page
statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 3 July 1957.  After having had over 9 years
of service in the Regular Army, he enlisted in the ARNG on 10 August 1987.
His 20-year letter is dated 2 June 1998.  He was promoted to Sergeant First
Class, E-7 on 16 April 1999.  He was ordered to active duty in an ADSW
status on        1 October 2001 for the purpose of airport security.

2.  Around January 2002, action was initiated to separate the applicant for
misconduct (after testing positive for marijuana).  On 5 January 2002, the
applicant’s company commander recommended that the applicant be retained in
the TXARNG.

3.  On 5 January 2002, the applicant was advised by consulting counsel of
the basis for the contemplated action to separate him.  He requested
appointed counsel for consultation, consideration of his case by a board of
officers, personal appearance before a board of officers, and he provided a
statement in his own behalf.

4.  On 5 January 2002, the applicant requested discharge and transfer to
the Retired Reserve.

5.  In a statement to an unknown agency, dated 22 March 2002, the applicant
stated that, when he was on duty at Love Field Airport, they were told by
the team noncommissioned officer in charge (NCOIC) that their task force
team would have to qualify with their weapons from the standing position.
He knew from being on duty at the airport that any shots fired by his team
would have to be right on target.  [With this in mind, he] and three other
men -- a retired E-7 and two lieutenants -- set up two firing targets and
were firing their handguns.  Then   they switched to AR 15s.  They were
using shot-n-see paper targets, which   gave off a puff of yellow smoke
when hit.  The targets were taped to the outside of one-gallon paint cans.
He took the used paper targets, wadded them up, and stuffed them inside the
paint cans which were placed upside down on a section of rebar.

6.  The applicant continued that, in a little while, he discovered that the
lieutenants had mixed tracer in with their rounds.  After a bit, the wads
of targets fell out of the paint cans.  The wind began moving them around,
so they began firing at the wads of paper.  With the dust, they did not
notice there was a fire until they all stopped to reload and they noticed
there was smoke down range.  He pulled his field jacket off and filled the
pockets with dirt and tried to stay behind the line as the wind would
change direction.  He would catch a chest full of smoke, choke a bit, and
continue.  They finally got the fire under control.  They knew they were
trespassing on the farmland, so when they were sure the fire was out they
left the area.  Before he got home, his wife called and told him his pager
was going off.  She told him what the number was.  He called and it was his
NCOIC from the Task Force letting him know they had a urinalysis test the
next day.  He reported to the unit on 28 November 2001.
7.  The applicant further stated that, on 12 December 2001, the officer in
charge of the Task Force explained to him that he had tested positive for
THC.  He (the applicant) called the retired E-7 and asked if he would write
a statement about the fire, due to a comment one of the lieutenants had
made the day of the fire (that he smelled marijuana).  He found a
laboratory to take another test.  Captain W___ had just told him that
marijuana stays in your system from 30 to 60 days after you stop smoking
it.  On 14 December 2001, he went back to Lawton, OK to record the area
where the fire was.  As they were getting out of the vehicle with a
camcorder a man in a truck stopped and asked them what they were doing.
They told him that they were going to record some old farm buildings.  The
man told them that would be OK; just don’t go past the fence.  They
recorded the area around the old house, two outbuildings, and a large barn-
type building that had a large lock on it.

8.  The applicant further stated that the next day, 15 December 2001, he
went back and picked up his test results [given by a private company on 13
December 2001].  Because he does not do drugs, his test results were all
negative.  He spoke with the Judge Advocate General, who recommended he not
go to the area of the fire again.  He also said the Army would not send
someone out to check the area.  The only thing he can think of is that the
area where the fire started was being used or had been used to grow
marijuana.  He knew they were trespassing, but he was willing to work that
out with the law.  All he wanted was to clear himself so he could reenlist
and serve his country with all his heart.

9.  The action of the approval authority or any administrative board
action, if a board was held, is not available.

10.  On 7 March 2003, the applicant was discharged from the ARNG under the
provisions of National Guard Regulation (NGR) 600-200, paragraph 8-26e(2)a,
by reason of acts or patterns of misconduct.  His NGB Form 22 shows he was
given a character of service of uncharacterized and an RE code of 3.

11.  The applicant’s original discharge orders, dated 8 May 2003, showed he
was discharged from the ARNG and as a Reserve of the Army.  These orders
were revoked in 2005, apparently based on an ADRB action.  On 11 March
2005, the ADRB determined that the applicant was not an entry-level Soldier
and therefore the characterization of his service as uncharacterized was
improper.  The ADRB noted that, although his record was void of the
specific facts and circumstances concerning the events that led to his
discharge, the evidence of record showed that the period of services under
review spanned more than 15 years of service in the ARNG.  Accordingly, the
ADRB voted to grant relief by changing the characterization of his service
to fully honorable.  In the absence of information to the contrary, the
ADRB determined that the reason for his discharge was both proper and
equitable and voted not to change [the reason for discharge].

12.  Orders dated 5 May 2005 discharged the applicant from the ARNG and
assigned him to the Retired Reserve.  His NGB Form 22 was also corrected to
change his character of service from uncharacterized to general under
honorable conditions.  A 17 May 2005 letter from the TXARNG G1 to the
Personnel Division, NGB, noted that the findings and recommendations of the
ADRB to upgrade the applicant’s characterization of service to honorable
was carefully reviewed; however, the recommendation was found to be not
acceptable.  The letter noted that the State Adjutant General has a strict
zero tolerance policy with regard to substance abuse; however, the
applicant’s discharge would be upgraded to general under honorable
conditions.

13.  On 17 October 2006, the applicant filed an Inspector General Action
Request, attempting to get the TXARNG to allow him to reenlist.  On 27
October 2006, the State Inspector General responded to the applicant,
stating that, in accordance with NGR 600-200, Soldiers who were previously
discharged in pay grades E-7 and above under the conditions of chapter 2,
table 2-1 of this regulation are ineligible for enlistment.

14.  NGR 600-200, in pertinent part, states that RE code 3 applies to
persons who are not qualified for continued service, but the
disqualification is waivable.

15.  NGR 600-200 (Enlisted Personnel Management), table 2-1 of the version
in effect at the time, provided basic eligibility standards and
verification procedures for enlistment of nonprior service personnel.

16.  NGR 600-200, chapter 2, table 2-4 of the version in effect at the
time, provided basic eligibility standards for enlistment of prior service
personnel.  Rank at time of previous discharge was not listed as an
eligibility/ineligibility criteria.  However, Rule G (moral and other
administrative criteria) referred to tables 2-9 and 2-10.  Table 2-1, Rule
N stated that a discharge for drug or alcohol abuse during the last period
of service required a waiver.

17.  Chapter 2 of NGR 600-200 was superseded on 1 February 2005 by an Army
National Guard Enlistment Program standalone document.  Table 2-1 (Prior
Service/Glossary Nonprior Service Military Separations/Discharges), line
       16 states that members previously discharged by reason of drug abuse
require a waiver to reenlist, with several notes for further guidance.
Note 10 states that members who were discharged in pay grades E-7 and above
are ineligible for enlistment – no waiver authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s primary request is that he be allowed to reenlist in
the TXARNG.  This Board can only make recommendations to a State regarding
its ARNG members.  Witness the results of the ADRB’s action – the ADRB
recommended that his discharge be changed from uncharacterized to
honorable; however, the State changed his characterization of service only
to general under honorable conditions.  Likewise, the Board could only
recommend that the TXARNG allow the applicant to enlist.

2.  The applicant’s 24 years of honorable service and his contentions, in
his application to the Board and in other statements he made throughout the
separation process, that he never used drugs have been carefully
considered.  Nevertheless, the Board is reluctant to substitute its
judgment for that of the TXARNG and recommend that he be allowed to enlist
in the TXARNG.

3.  The applicant admitted that he was trespassing when he went to that
area to practice firing his weapon.  That in itself is a serious lapse of
judgment for a senior noncommissioned officer.

4.  In addition, the applicant contended that he was probably exposed to
burning marijuana when firing his weapon on 27 November 2001 (the day prior
to the unit urinalysis on 28 November 2001).  He stated he was told that
marijuana stays in the system for 30 to 60 days after stopping use.  He
stated that the private urinalysis test he took on 13 December 2001 came
back negative.  However, if marijuana stays in the system for 30 to 60 days
after stopping use, and he was exposed to burning marijuana on 27 November
2001, then the test he took on  13 December 2001 should have also come back
positive.

5.  The failure of the 13 December 2001 test to come back positive leaves
an implied reasoning that his exposure to marijuana ended at the latest
around      12 October 2001, within 60 days for his 28 November 2001 test
to have come back positive but after 60 days for his 13 December 2001 test
to have come back negative.  However, any unintentional exposure on 27
November 2001 as the only reason for his 28 November 2001 positive test
results would therefore be ruled out.

6.  Notwithstanding the fact that there is insufficient evidence that would
warrant recommending that the applicant’s RE code be changed or that the
TXARNG enlist him, the Board wants the applicant to know that this action
in no way diminishes the sacrifices made by him in service to our Nation.
The applicant and all Americans should be justifiably proud of his service
in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sap___  __eem___  __qas___  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.




                                  __Susan A. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070004969                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20071004                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |100.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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