RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060010599 


	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

Mr. Andrew C. Jacobs

Analyst


The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. David Haasenritter

Member

Mr. John Heck

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, that his date of discharge from the Army National Guard be changed from 24 February 2006 to 20 July 2003, or in the alternative, 14 August 2003.

2.  The applicant essentially states that the orders which reflect that his date of discharge from the Army National Guard was 24 February 2006 are administratively incorrect.   

3.  The applicant provides the following in support of this application:

a.  a legal brief from his counsel;

b.  his DD Form 214 (Certificate of Release or Discharge From Active Duty);

c.  his enlistment contract which shows that he enlisted in the North Carolina Army National Guard on 31 July 2003;

d.  a portion of his DD Form 2808 (Report of Medical Examination) which shows, in pertinent part, that he tested positive for marijuana, and was informed by letter of the reason for his disqualification on 14 August 2003;

e.  a letter, dated 14 August 2003, from the Chief Medical Officer of the Raleigh Military Entrance Processing Station (MEPS) which informed the applicant of his temporary disqualification for military service as a result of his recent medical examination at the Raleigh MEPS;

f.  orders, as amended, which shows that he was discharged on 
24 February 2006, and that his service was uncharacterized;

	g.  extracts of Army Regulation 135-178 (Enlisted Administrative Separations); 

	h.  extracts of Army National Guard Enlistment Program Fiscal Year 2006 Enlistment Criteria; and

	i.  extracts of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).
  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel essentially requests that his office be notified of any decision rendered at the earliest convenience.  Counsel further requested that his office be furnished a copy of any advisory opinion considered by the Board, as well as a reasonable period of time to respond in writing to such an advisory opinion.

2.  Counsel essentially states that the applicant is requesting that an administrative correction be made to the orders which discharged him from the Army National Guard on 24 February 2006, since the proper date of the applicant’s discharge should have been 30 July 2003, the date that he was found to be disqualified for service, or at the latest, 14 August 2003, the date of the letter which informed the applicant of his disqualification. 

3.  Counsel provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
24 February 2006, the date he was discharged from the Army National Guard.  The application submitted in this case is dated 25 July 2006.

2.  The applicant’s military records show that he enlisted in the Regular Army on 25 July 1975, and served on active duty until he was honorably released from active duty on 27 April 1981 and transferred to the United States Army Reserve Control Group.

3.  The applicant provided a DD Form 4-series (Enlistment/Reenlistment Document – Armed Forces of the United States) which shows that he enlisted in the North Carolina Army National Guard on 31 July 2003.

4.  The applicant provided an extract of his DD Form 2808 which shows, in pertinent part, that he tested positive for marijuana during a medical examination conducted in conjunction with his enlistment into the North Carolina Army National Guard.  

5.  In a letter, dated 14 August 2003, the Chief Medical Officer of the Raleigh MEPS informed the applicant of his temporary disqualification for military service as a result of his recent medical examination at the Raleigh MEPS.  This letter also stated that a urine test taken as part of the applicant’s medical examination to determine military service showed a disqualifying amount of marijuana in his urine at that time.  This letter also stated that to make sure, a second test was conducted on the same specimen, and again obtained disqualifying results.  This letter further stated that the applicant was disqualified for 45 days because of marijuana use at the time of his medical examination.  

6.  State of North Carolina, Department of Crime Control and Public Safety, Joint Force Headquarters, Raleigh, North Carolina Orders Number 055-800, dated 
24 February 2006, as amended by Orders Number 055-801, dated 24 February 2006, discharged the applicant from the Army National Guard on that date, and stated that his service was uncharacterized.  These orders show that the authority for the applicant’s discharge from the Army National Guard were paragraph 8-26g(2) (Erroneous Enlistment or Extension) of NGR 600-200 and paragraph 7-2 (Erroneous Enlistment, Reenlistment, and Extension) of Army Regulation 135-178.  

7.  During the processing of this case, an advisory opinion was obtained from the Personnel Division, National Guard Bureau.  That office essentially recommended that the applicant’s date of discharge be adjusted to 14 August 2003, the closest estimate of the date that the applicant’s drug test results were posted.  

8.  A copy of the advisory opinion was forwarded to the applicant and his counsel on 8 March 2007 for rebuttal or comment.  In a letter, dated 13 March 2007, the applicant’s counsel essentially stated that the advisory opinion position that the applicant’s date of discharge “will be effective the day the results are posted” confirms the latter part of their contention.   

9.  It was noted that the applicant’s military records show that he was ordered to active duty in support of Operation IRAQI FREEDOM, with a reporting date of 
1 October 2003.  It was also noted that he was placed in an absent without leave (AWOL) status on 1 October 2003, and was subsequently dropped from the rolls and listed as a deserter until he was apprehended by civil authorities on 
4 November 2005.

10.  It was also noted that the applicant’s military records contain an NGB Form 22 (Report of Separation and Record of Service) that was issued at the time of his discharge on 24 February 2006 erroneously shows in item 24 (Character of Service) that his service was honorable.

11.  Chapter 7 of Army Regulation 135-178 provides separation guidance for defective enlistments and reenlistments.  Paragraph 7-2 of this chapter provides that a Soldier may be discharged on the basis of an erroneous enlistment, reenlistment, or extension of enlistment.  It also states, in pertinent part, that an enlistment, reenlistment, or extension of enlistment is erroneous in the following circumstances, if:

a.  it would not have occurred had the relevant facts been known by the Government or had appropriate regulation been followed;

b.  it was not the result of fraudulent conduct on the part of the Soldier; and

c.  the defect is unchanged in material respects.

12.  Paragraph 2-8 (Physical) of the Army National Guard Enlistment Program Fiscal Year 2006 Enlistment Criteria provides, in pertinent part, that applicants will be advised that they will be discharged from the Army National Guard if the results of their pre-accession drug and alcohol test were found to be positive at the time of enlistment.  Discharge for a positive drug and alcohol test will be effective the day the results are posted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his date of discharge from the Army National Guard should be changed from 24 February 2006 to 20 July 2003, or in the alternative, 14 August 2003.

2.  It was noted that the applicant was ordered to active duty in support of Operation IRAQI FREEDOM, with a reporting date of 1 October 2003.  It was also noted that he was placed in an AWOL status on 1 October 2003, and was subsequently dropped from the rolls and listed as a deserter until he was apprehended by civil authorities on 4 November 2005.  However, as the applicant’s pre-accession drug and alcohol test was positive for marijuana, and the results were posted on or about 14 August 2003, the applicant’s should have been discharged on that date.  It was also noted that the applicant’s NGB Form 22 erroneously shows that his service in the Army National Guard was honorable.  As a result, it would be appropriate to correct his military records at this time.

3.  In view of the foregoing, the applicant is entitled to correction of his military records to show that he was discharged on 14 August 2003, and that his character of service shown on his NGB Form 22 be corrected to show that his service in the Army National Guard was uncharacterized.

4.  Additionally, the appropriate National Guard officials should contact the appropriate law enforcement agencies to inform them that the applicant was not AWOL or in a deserter status from 1 October 2003 to 4 November 2005.

BOARD VOTE:

__JS____  ___DH __  ___JH __  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was discharged from the Army National Guard on 14 August 2003, that his character of service shown on his NGB Form 22 be corrected to show that his service in the Army National Guard was uncharacterized, and that National Guard officials notify the appropriate law enforcement officials that the applicant was erroneously reported as being AWOL from 1 October 2003 to 4 November 2005 and should be removed from his records.





______  John Slone________
          CHAIRPERSON




INDEX

CASE ID
AR20060010599
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070419
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
112.0600.0000
2.
110.0100.0000
3.

4.

5.

6.