MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 June 2003
         DOCKET NUMBER: AR2003088513

         I certify that hereinafter is recorded the record of consideration 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. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas B. Redfern		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his records be corrected to show he was separated with an honorable discharge on his expiration term of service of 23 December 1985, that his reenlistment (RE) code be changed to 1, and that his rank be changed from promotable E-4 to E-5.

APPLICANT STATES: That he needs his records corrected so he can enlist in the U. S. Army Reserve.

EVIDENCE OF RECORD: The applicant's military records show:

He apparently enlisted in the Regular Army on 24 February 1981.

The applicant's DA Form 2A, (Personnel Qualification Record Part I) dated 1 February 1983 shows his rank as Specialist Four, E-4. No promotion indicator is listed; no promotion points are listed. No E-5 promotion list is filed in his records.

On 13 May 1983, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for testing positive on a urinalysis test for an unknown illegal drug. Part of his punishment was a reduction to the rank of Private First Class, E-3.

Based on this drug use, the applicant was recommended for separation under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance. On 18 July 1983, he was discharged, with a general discharge under honorable conditions, for unsatisfactory performance. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he had no lost time. His DA Form 2-1 (Personnel Qualification Record Part II) does not show any other reductions in rank other than that as a result of the Article 15.

In 1986, the applicant applied to the Board for correction of his records to upgrade his discharge, set aside the Article 15, restore him to active duty, and restore all rights, privileges, and property he had lost.

A Board panel which convened on 1 April 1987 (in case number AC86-04150) noted that a "Blue Ribbon" panel of experts in toxicology and drug testing specifically examined the urinalysis test results of the specimen submitted by the applicant and determined that either the scientific test procedures or the supporting chain of custody documents, or both, were deficient. It was noted that, aside from the urinalysis, there did not remain in his record evidence of indiscipline sufficient to support the commander's conclusion that the applicant would not become a satisfactory soldier. Based upon this finding, the 1 April 1987 Board panel concluded that the applicant was unjustly given the Article 15 and unjustly separated.

The 1 April 1987 Board panel recommended the applicant's 18 July 1983 discharge be voided and his records be corrected to show he remained on active duty until 23 December 1985 when he was separated with an Honorable Discharge Certificate by reason of expiration of term of service; that his Article 15 be removed from his records; and that all rights, privileges, and property lost as a result of the Article 15 and all benefits and property lost as a result of his general discharge be restored. It was left up to the Commander, Reserve Personnel Center to evaluate his records and assign such RE code as was then appropriate.

Title 31 U. S. Code, section 3702 prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code (also known as the barring statute), is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The portions of the applicant's request concerning correction of his records to show he was separated with an honorable discharge on his normal expiration term of service on 23 December 1985 with an RE code of 1 were addressed by a Board panel which considered his case on 1 April 1987. However, it appears the corrections recommended by that Board panel were not carried out.

2. Those corrections, to include showing the applicant separated with an RE code of 1 (since there was no evidence of indiscipline in his records other than the Article 15 sufficient to support the commander's conclusion that he would not become a satisfactory soldier) will be made by the Army Review Board Agency's Support Division – St. Louis so far as the passage of time will allow.

3. The 1 April 1987 Board panel recommended in part that all rights, privileges, and property lost by the applicant as a result of his Article 15 and his 18 July 1983 discharge be restored to him and that his records be corrected to show he remained on active duty until 23 December 1985. These corrections would have resulted in a monetary payment to the applicant. However, the Defense Finance and Accounting Service does not retain records for more than 6 years (hence the reasoning behind the barring statute).

4. The Board regrets its inability to personally oversee the accomplishment of every correction directed but that is a physical impossibility. The Board must rely on others to ensure the corrections are made. One of the “others” on whom the Board must rely to ensure its directed corrections are made is the applicant him/herself. The applicant should have discovered well before April 1993 (when the statute of limitations ran out) that the directive concerning these corrections had not been made. His application is dated 14 April 2003. The records that would have definitively proven or disproven the monetary payments were made are no longer available. Without such proof, the Board will not now direct that they be made.

5. The evidence of record does not show that the applicant was ever on an E-5 promotion list. Any argument that he would have been promoted to E-5 had he not been unjustly discharged is purely speculative. The Board concludes that it would not be equitable to correct his records to show he was separated as an E-5.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE: The Board requests that the Army Review Boards Agency Support Division – St. Louis correct the applicant's records by voiding the general discharge under honorable conditions which was issued to him on 18 July 1983 and by showing that he continued to serve on active duty until 23 December 1985, when he was separated from the service with an Honorable Discharge Certificate by reason of expiration of term of service under the provisions of Army Regulation 635-200, chapter 4, in the rank of Specialist Four, E-4, with a reenlistment code of RE 1.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__ao___ ___kh__ ___tr__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003088513
SUFFIX
RECON
DATE BOARDED	20030605
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.00
2.
3.
4.
5.
6.