RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	12 April 2007  
	DOCKET NUMBER:  AR20060009385 


	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. Gerard W. Schwartz

Acting Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, amendment to the narrative reason for his separation in Item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) not to read "Drug abuse" or "Misconduct."

2.  The applicant states, in effect, he would like his DD Form 214 to reflect the truth.  Currently it states one of the reasons for separation was drug abuse.  He was tested on two separate occasions within three days, as his records will reflect; both tests came back negative for drug abuse.  Also, regarding the misconduct, he was erroneously accused by his ex-wife of assault.  They were undergoing divorce proceedings, which she did not want, and was out to inflict harm against him.  She later recanted her story.  However, he was told by Army personnel that it did not make a difference.  This incident should also be on record and thereby reflecting that he did not behave in an inappropriate manner to be labeled as misconduct.  His record will illustrate that he did not have a history of misconduct towards the military.

3.  The applicant also states that at the time of his discharge, he was informed that he was receiving a general discharge and no mention was made of the reason for separation.  He discovered the reason for separation the day he signed the discharge papers.  He was lead to believe that after 4 years from the date of separation his general discharge would covert to an honorable discharge. With this in mind, he reluctantly agreed to sign the papers.  After receiving a requested copy of his DD Form 214, he discovered that the information provided in the "narrative reason for separation" had not changed and therefore, he requests that his military records be corrected.

4.  The applicant provides copies of his Urinalysis Custody and Report Record and his DD Form 214 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 July 1985, the date of his separation from active duty.  The application submitted in this case is dated 25 June 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-1, on 13 November 1979, for 3 years.  He completed training and was assigned military occupational specialty, Air Defense Artillery Short Range Missile Crewman, 16P.

4.  The applicant served overseas in Korea from 1 June 1980 through 28 May 1981 and was awarded the Good Conduct Medal.  He was advanced to pay grade E-4 on 1 February 1981 and to E-5 on 4 August 1982.  

5.  The applicant reenlisted on 9 November 1982, for 3 years.  He extended his reenlistment for 5 months on 11 February 1983 to complete an overseas tour in Hawaii.

6.  On 26 September 1983, he received an oral reprimand for failing to obey his written charge of quarters instructions by sleeping while on duty as charge of quarters.  His punishment included 7 days restrictions and 10 days extra duty.

7.  On 6 March 1984, the applicant received a letter of warning stating that he had been detained by the military police for striking and choking his wife.  Further, on 7 September 1983, the applicant and his wife were involved in an altercation that resulted in physical violence and military police intervention.  The letter also stated that incidents such as these were not acceptable and would not be tolerated by the command and future misconduct of that nature would result in the termination of the applicant's assignment to government quarters.

8.  On 6 December 1984, the applicant received counseling for assaulting his wife for the fourth time and communicating a threat to his wife.  The applicant was advised that since he had a pattern of this type of misconduct, separation actions would be initiated under the provisions of Chapter 14, Army Regulation 635-200.  

9.  On 8 April 1985, the applicant's commander initiated a bar to reenlistment against the applicant.  The commander stated that the applicant's self-discipline 

and personal conduct at this time were not consistent with the high quality and standards demanded for retention in the US Army.  The applicant's pattern of misconduct, which included indebtedness and domestic problems, would not be tolerated.

10.  On the same day, the applicant acknowledged the bar to reenlistment recommendation and elected not to submit a statement in his own behalf.  The records show the bar to reenlistment was approved on 8 April 1985.

11.  The applicant's records contain an Incident/Complaint Report, dated 11 May 1985 that states while conducting a command authorized vehicle inspection, military working dogs responded to a black plastic car "caddy" inside a dark gray Dodge.  A search of the vehicle found particles of brownish/green leafy vegetable matter, a pack of Zig-Zag cigarette papers, and a particle of burnt paper.  The applicant, the driver of the vehicle, was placed under military apprehension and advised of his rights, and taken into custody.  The applicant refused to sign the Military Suspects' Acknowledgement and Waiver of Rights form.

12.  On 14 May 1985, a Report of Analysis, disclosed marijuana upon examination of some of the evidence found in the vehicle driven by the applicant. 

13.  The applicant submits a Urinalysis Custody and Report Record, dated 16 May 1985, which shows urinalysis screening laboratory results were negative.

14.  On 23 May 1985, he accepted punishment under Article 15, Uniform Code of Military Justice, for wrongfully possessing some amount of marijuana and wrongfully possessing paraphernalia that may be used to administer or dispense marijuana on or about 11 May 1985.  His punishment included reduction to pay grade E-4, forfeiture of $462.00 pay per month for 2 months, and 45 days restriction and extra duty.

15.  On 17 June 1985, the applicant's commander advised him that he was being considered for elimination from the service for misconduct.  The commander stated that the basis for this action was use of illegal drugs.  The commander also advised the applicant of the rights available to him.

16.  On 18 June 1985, the applicant, through counsel, acknowledged the proposed separation action under the provisions of Army Regulation 635-200, Chapter 14, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He acknowledged that he understood that he 

would receive a general discharge and that he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, the act of consideration by either board did not imply that his discharge would be upgraded.  He submitted a statement that the basis of his discharge for the use of drugs was a mistake.  He was given a urinalysis test on 13 May 1985 and it came back negative and he should not be accused of illegal drugs.

17.  On 18 June 1985, the applicant’s commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 14-12d.  The commander stated that the applicant had been identified as a user of illegal drugs.  The applicant lacked a sense of responsibility and dedication to service.  In addition to drug use, the applicant had numerous incidents of spouse abuse and a history of failing to pay just debts.  The applicant's involvement with drugs leads him to believe he would not change his behavior pattern.  The applicant had been counseled by his chain of command on numerous occasions, had an approved bar to reenlistment, and received an Article 15 for wrongful possession of marijuana.

18.  On 28 June 1985, the appropriate separation authority approved the discharge and specified the issuance of a General Discharge Certificate.

19.  The applicant was separated on 17 July 1985, in pay grade E-4, under the provisions of Army Regulation 635-200, Chapter 14-12d, Misconduct – Drug Abuse.  He was credited with 5 years, 8 months, 5 days total net service.  His service was characterized as under honorable conditions.

20.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a general discharge was normally considered appropriate.

22.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious, that any other characterization would be inappropriate.

23.  Army Regulation 635-5-1, in effect at the time, provided the policy for separation program designators and corresponding narrative reason for separation based on the regulatory authority for separation or discharge.  The regulation shows that the separation program designator (SPD) "JKK", as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is "misconduct, commission of a serious offense, abuse of illegal drugs" and that the authority for discharge under this SPD is "Army Regulation 635-200, Chapter 14, paragraph 14-12c(2)."  Under current standards, discharges for misconduct under Army Regulation 635-200 only provides for the narrative reason for separation to read "Misconduct" without further description of the type of misconduct such as drug abuse or homosexual acts.  Also under current standards, enlisted Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter "Continuous Honorable Active Service From" then enter the specific period(s) for reenlistment(s) using the first day of service which DD Form 214 was not issued until the date before commencement of the current enlistment.

24.  Title 38, United States Code, chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military service when the following conditions are met:  (1) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (2) the person would have been eligible for a discharge or release under honorable conditions at that time except for the intervening enlistment or reenlistment."

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an amendment to the narrative reason for his separation on his DD Form 214 not to read "Drug Abuse or "Misconduct".  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant received several counseling's and one Article 15 for misconduct.  Additionally, he was barred from reenlistment for, in his commander's opinion, his self-discipline and personal conduct not being consistent with the high quality and standards demanded for retention in the US Army.  The applicant's commander stated that his pattern of misconduct, which included indebtedness and domestic problems, would not be tolerated.  Therefore, based on the available evidence, it is believed the narrative reason for separation for misconduct, drug abuse, was both proper and equitable.  The applicant has failed to show otherwise.

3.  The applicant completed his first full term of enlistment on 8 November 1982 and reenlisted on 9 November 1982, for 3 years.  Under current standards, if a member reenlists without being issued a DD Form 214 and is separated with any characterization of service except "Honorable," "Continuous Honorable Active Service From" from the first day of service which DD Form 214 was not issued until the date before commencement of the current enlistment may be entered on the DD Form 214.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 July 1985, the date of his separation from active duty; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 July 1988.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___EM__  __CLG __  ___MJF _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the individual a DD Form 215 (Correction to DD Form 214) to show in Item 18 (Remarks) "Continuous Honorable Active Service From 791123-821108".

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending Item 18 not read "Drug Abuse" or "Misconduct".




      _____ ___
                CHAIRPERSON




INDEX

CASE ID
AR2006009385
SUFFIX

RECON

DATE BOARDED
20070412
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19850717
DISCHARGE AUTHORITY
AR635-200, Chapter 14-12c
DISCHARGE REASON
Misconduct – Drug abuse
BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY

ISSUES         1.
110.02
2.
144.94
3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060009385


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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