IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20090017301 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

	a.  revocation and/or amendment of his discharge from the Puerto Rico Army National Guard (PRARNG) to not show a data code of "AD-W" and a reentry code of RE-3;

	b.  the 26-27 September 2005 urinalysis results be expunged from his records;

	c.  the PRARNG provide him all military pay, allowances, and retirement points from January 2006 to the present as though he had fully participated in all drills and annual training assemblies; and

	d.  his return to the U.S. Army Reserve (USAR) Control Group (Reserve Officers' Training Corps (ROTC)) to attend commissioning as a second lieutenant as scheduled, if granted by the appropriate authority in Cadet Command, who will oversee his panel conclusion.

2.  The applicant states that his record shows no previous incident of misconduct and he never previously yielded a positive urinalysis.  He further states:

	a.  he was prohibited from attending drills and annual training assemblies; and

   b.  he has demonstrated that as a military authority, the PRARNG has acted arbitrarily, capriciously, and in clear abuse of discretion.  He states that the PRARNG did not follow a single established Army regulation and, as such, his discharge was conducted lacking equity and propriety; and that it was erroneous, unlawful, and unjust.

3.  The applicant provides the following:

* DA Form 597 (Army Senior ROTC Nonscholarship Cadet Contract)
* DA Form 594-1 (Simultaneous Membership Program (SMP) Agreement)
* National Guard Bureau (NGB) Form 21 (ARNG Enlistment Agreement)
* Cadet Record Brief - active duty assignment
* memorandum, Subject: Positive Urinalysis Results, dated 29 November 2005
* memorandum, Subject: Request for Discharge for Misconduct, dated 20 December 2005
* DA Form 4856 (Developmental Counseling Form), signed by the applicant on 20 January 2006
* memorandum, Subject: Request for Urinalysis Retest and Litigation Package, dated 20 December 2005
* memorandum, Subject: Receipt of Notification, dated 20 December 2005
* DA Form 2446 (Request for Orders), dated 20 December 2005
* negative laboratory results for dates other than the urinalysis in question
* numerous communications between the applicant's civilian counsel and PRARNG
* letter from the PRNG Full Time Judge Advocate indicating he had recommended the Adjutant General of Puerto Rico afford the applicant a board of officers to determine his suitability for retention or discharge
* letter addressed to The Adjutant General of Puerto Rico requesting the applicant be permitted to perform drills
* letters of communication with the NGB and PRNG Offices of the Inspector General (OIG)
* letters regarding OIG inactivity
* extract of the PRNG Regulation 635-100
* applicant's discharge orders (Orders 355-16)
* NGB Form 22A (Correction to NGB Form 22)
* Sworn statement (affidavit) requesting commission
* Cadet Command supporting statements
* Military service record, recommendation letters, awards



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was a cadet with the ROTC during his attendance at the Pontifical Catholic University in Ponce, Puerto Rico.  He also enlisted in the PRARNG on 7 June 2004 and he was in the SMP in the rank/grade of sergeant (SGT)/E-5.  He was assigned to the 295th Infantry Battalion as an officer trainee.

2.  On 23 October 2005, he submitted to a urinalysis conducted by the PRARNG, which tested positive for 60ng/ml of THC (marijuana).  The Department of Defense cutoff for THC is 50 ng/ml.  The 295th Infantry Battalion's chain-of-command was notified on 29 November 2005.

3.  A memorandum from his unit commander, Subject: Request for Discharge for Misconduct, dated 20 December 2005, stated that he was identified through urinalysis as having used a controlled substance incurred in misconduct and that he was notified, in writing, that his separation from the PRARNG had been recommended.  It further stated that he had been counseled and advised that he may appeal the recommendation to The Adjutant General of Puerto Rico by presenting a written rebuttal within 15 days of receiving the counseling.

4.  On 20 February 2006, he submitted a rebuttal to the separation action.

5.  His civilian counsel stated that in the processing of his separation his rights were violated by:

   a.  the PRARNG using the incorrect regulatory authority for his separation proceedings and

   b.  serving the applicant a notice that did not comply with regulatory requirements.

6.  Additionally, his counsel indicated he was still waiting for the PRARNG to convene a board of officers to address the applicant's separation action and further indicated the applicant was being deprived of his right to attend drills and complete annual training requirements.

7.  As a result of the positive urinalysis he was given an honorable discharge with an effective date of 12 February 2006.  Orders 355-16, issued by the PRARNG Element, Joint Forces Headquarters, dated 21 December 2007, show the authority for his discharge was National Guard Regulation 600-200 (Enlisted Personnel Management System), paragraph 8-26e(2)(b).  He was given a data code of "AD-W   RE:  3."
8.  In the processing of this case, on 26 June 2010 an advisory opinion was obtained from the National Guard Bureau (NGB), Chief, Personnel Division.  The advisory official stated the applicant was requesting the following:

	a.  that his discharge from the PRARNG be revoked and/or amended;

	b.  that his 26-27 September 2005 urinalysis results be expunged from his record;

	c.  that the PRARNG provide him all military pay, allowanced, and retirement points from January 2006 to the present; and

	d.  his return to the USAR Control Group (ROTC) for commissioning as a second lieutenant as scheduled, if granted by the appropriate authority in Cadet Command, who will oversee this panel conclusion.

9.  The advisory official stated that based on a review of the facts and applicable law policy in this case, no error or injustice were found.  The official stated the legal procedural requirements for separating the applicant under Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) were met.  As a result, the NGB recommended denying his request.  The official further stated:

   a.  the applicant was a Cadet with the ROTC during his attendance with the Pontifical Catholic University, he was also an enlisted Soldier in the PRARNG's SMP in the rank/grade of SGT/E-5, and he was assigned as an officer trainee; and

   b.  on 23 October 2005, the applicant submitted to a urinalysis, conducted by the PRARNG, which tested positive for 60 ng/ml of marijuana.  The DoD cutoff for marijuana is 50 ng/ml.  His unit's chain of command was notified on
29 November 2005.  On 20 December 2005, the applicant's company commander recommended his separation from the PRARNG.  On 20 January 2006, the applicant was counseled about his positive urinalysis and notified that separation proceedings were being initiated.  On 10 February 2006, the applicant submitted a rebuttal to the separation action.  Considering the applicant's rebuttal and as a result of his positive urinalysis, he was discharged from the PRARNG and as a reserve of the Army, effective 12 February 2006.

10.  An NGB legal review of the NGB advisory opinion stated that the legal and procedural requirements for separating the applicant under Army Regulation 
135-178 were met.  It stated that the applicant tested positive for marijuana 


above the cutoff level during a urinalysis, he was counseled for the positive urinalysis, and he was notified both in person and in writing that he was going to be processed for separation.  It stated that the applicant was not an officer and had not been enlisted long enough to be entitled to a separation board hearing, but he was allowed to submit a rebuttal before he was released from the PRARNG.

11.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 16 July 2010, the applicant submitted a rebuttal to the NGB advisory opinion by indicating the following:

	a.  he was not given the right to rebut the urinalysis results;

   b.  his rebuttal [to his separation] was delayed, mishandled, and ignored; and

	c.  that the requirements of Army Regulation 135-178 were not met.

12.  Army Regulation 135-178, paragraph 12-1 (Misconduct), states that abuse of illegal drugs is serious misconduct.  Discharge action normally will be based upon commission of a serious offense.  Paragraph 12-9 (Procedures), states that the administrative board procedure will be used, except when the use of the notification procedure is authorized provided characterization of service under other than honorable conditions is unwarranted.

13.  National Guard Regulation 600-200, in effect at the time, stated that first time drug offenders in the rank of SGT and above and all Soldiers with 3 or more years of total military service must be processed for discharge.  Reentry code would be RE-3.

14.  National Guard Regulation 600-200 prescribes that all Soldiers with 6 or more years of total military service on the date of initiation of recommendation for separation, or if being considered for separation under other than honorable conditions, have the right to an administrative separation board.

15.  Army Regulation 135-178, prescribes that a Soldier may be discharged for misconduct when it is determined under the guidance set forth in chapter 2, section I, that the Soldier is unqualified for further military service by reason of abuse of illegal drugs is serious misconduct. Discharge action normally will be based upon commission of a serious offense.


DISCUSSION AND CONCLUSIONS:

1.  While it is noted that this Board may only recommend that States and Territories make corrections when appropriate, there appears to be no errors or injustice found in the separation processing of the applicant.

2.  The applicant contends the PRARNG failed to follow legal and regulatory procedures in processing his separation; he was not permitted to rebut his urinalysis; his rebuttal to his separation action was delayed, mishandled, and ignored; and he was illegally prohibited from attending drills and annual training assemblies.  His civilian counsel also stated that his rights were violated during the processing of his separation.  However, there is insufficient evidence to show these contentions are valid.

3.  The applicant tested positive for a THC level above DoD cutoff levels during a unit urinalysis.  As an officer candidate, it was a particularly serious offense.  He was counseled for this positive urinalysis and notified, both in person and in writing, that he was being processed for separation.  Notwithstanding the recommendation for a separation board of officers by the PRARNG full-time Judge Advocate Office, he was not an officer and had not been enlisted long enough to be entitled to a separation board hearing since he was not given an under other than honorable conditions discharge.  While there is no requirement to allow him to rebut the urinalysis he was allowed to submit a rebuttal of his separation action before he was discharged from the PRARNG.  As such, there is insufficient basis for recommending the 26-27 September 2005 urinalysis results be expunged from his records.

4.  Once the company commander submitted the request for separation it was not known what the effective date of the applicant's discharge would be.  Therefore, to preclude potential pay problems by permitting him to attend drills or annual training assemblies, it would be reasonable to conclude that the commander would not permit the applicant to attend this training.  As such, since there is no recommendation to grant relief on the other portions of his request there is no basis for recommending the applicant be provided all military pay, allowances, and retirement points from January 2006 to the present as though he had participated fully in drills and annual training assemblies.
 
5.  Based on a review of the facts, applicable law, and Army policy, there is no evidence of record and the applicant has not provided any evidence showing he was not afforded due process.


6.  Based on the reason for his separation, he was given the appropriate reentry code and what appears to be a National Guard unique data base generated data code of AD-W.  As such, there is no basis for changing these codes.

7.  Evidence indicates the legal and procedural requirements for separating the applicant were met; therefore, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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.



      ____________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090017301



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ABCMR Record of Proceedings (cont)                                         AR20090017301



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