IN THE CASE OF: BOARD DATE: 13 January 2009 DOCKET NUMBER: AR20080016079 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, in effect, correction of his military records to change his separation program designator (SPD) code. 2. The applicant states that he was young and rather stupid. He did not realize how [his actions] would affect his career later in life. 3. The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214). CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 17 August 1982, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist). 3. On 16 December 1982, the applicant was assigned for duty as a cook with the 3rd Squadron, 61st Air Defense Artillery Brigade, in the Federal Republic of Germany. He returned to the United States on or about 10 August 1984 for duty at Fort Hood, Texas. 4. On 5 August 1985, the applicant was assigned for duty as a cook with the 2nd Squadron, 83rd Field Artillery Battalion, in the Federal Republic of Germany. 5. On 8 January 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for unlawful use of marijuana. The punishment included reduction to pay grade E-3, a forfeiture of $200.00 pay per month for 2 months and 30 days extra duty. 6. On 17 January 1986, the applicant’s commander recommended that he be barred to reenlistment based on his NJP for unlawful use of marijuana. The appropriate authority approved the recommendation on 27 January 1986. 7. On 30 August 1986, the applicant’s commander reviewed the bar to reenlistment and determined that it should remain in affect. 8. On 18 December 1986, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 9, due to drug abuse rehabilitation failure. The applicant acknowledged the action, was afforded an opportunity to consult with counsel, and stated that he wanted to receive treatment in a Department of Veterans Affairs (VA) medical center. 9. On or about 20 December 1986, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate. On 4 February 1987, the applicant was discharged accordingly. The applicant’s DD Form 214 shows that he had completed a total of 4 years, 5 months and 18 days of creditable active military service. He was assigned an SPD Code of JPC. His character of service was under honorable conditions. 10. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities, reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JPC was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, Chapter 9, due to drug rehabilitation failure. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he was young and stupid and did not realize the effect his actions would have on his career. 2. In the absence of evidence to the contrary, it is presumed the applicant was properly separated from military service due to drug abuse rehabilitation failure. 3. The SPD Code of JPC was the appropriate code for the applicant based on the governing regulation. There is no evidence of error or injustice. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement. 5. In view of the foregoing, there is no basis for granting the applicant's request. 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) AR20070016793 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080016079 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1