RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060013223 


	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.


x

	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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that in 1992, he was discharged from the Arkansas Army National Guard (ARNG) with a less than honorable discharge because of a positive drug urinalysis.  He claims that looking back over the years, he has come to realize the error of his ways and the negative impact his GD has had on his life.  He states that he is now requesting that the Board please consider upgrading his GD to an HD so that he may move on in a more positive direction in his life.

3.  The applicant provides a Self-Authored Letter and a Serenity Park Letter, dated 25 August 2006, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 18 April 1994, the date of his discharge.  The application submitted in this case is dated 1 September 2006.

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.  On 17 December 1984, the applicant enlisted in the Arkansas Army National Guard (ARNG) for eight years.  On 18 August 1985, he entered active duty to complete his initial active duty for training (IADT).  He successfully completed one station unit training at Fort Jackson, South Carolina and was awarded military occupational specialty (MOS) 63B (Light Vehicle Mechanic). 

4.  The applicant's record shows that the highest rank he held while serving in the Arkansas ARNG was specialist (SPC).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  A separation packet containing the specific facts and circumstances surrounding the applicant’s separation processing is not on file in his record.  However, the record does contain a National Guard Bureau (NGB) Form 22, which confirms on 18 April 1994, he was discharged under the provisions of paragraph 8-26q, National Guard Regulation (NGR) 600-200, by reason of misconduct, and that he received a GD.  

6.  The applicant provides a letter, dated 25 August 2006, from a Serenity Park Substance Abuse Counselor.  It states that the applicant has completed the residential treatment program and satisfied all recovery dynamics program requirements.  It further states the applicant gained a good understanding of addiction and of the solution that is found in the 12 steps, verified through both written and verbal response.  It further stated the applicant was applying himself to the best of his ability in order to continue the positive life change he began at Serenity Park.  

7.  NGR 600-200 (Enlisted Personnel Management) establishes standards, policies and procedures for the management of enlisted ARNG soldiers.  Chapter 8, in effect at the time, contained the policies and procedures for the separation and/or discharge of enlisted personnel from the ARNG.  

8.  Paragraph 8-26 of NGR 600-200, in effect at the time, provided the procedures for discharging members from the State ARNG and/or from the Reserve of the Army.  Paragraph 8-26q provided the policy for discharging enlisted members for acts or patterns of misconduct from military duty due to drug abuse.  An under other than honorable conditions (UOTHC) discharge is normally considered appropriate for members separated under these provisions of the regulation.  However, the separation authority may issue a GD or HD if warranted by the member's overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD should be upgraded to an HD was carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  The applicant’s record is void of a discharge packet containing the specific facts and circumstances surrounding his discharge processing.  However, there is a properly constituted NGB Form 22 on file.  This document identifies the reason and characterization of the discharge and carries with it a presumption of 
Government regularity in the discharge process.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.

3.  The applicant admits his separation was based on his use of illegal drugs.  Although the rehabilitation efforts he has made subsequent to his discharge are noteworthy, this factor alone is not sufficiently mitigating to support an upgrade of his discharge at this time.  While in the opinion of the separation authority, the applicant's overall record of service supported the issue of a GD instead of an UOTHC discharge at the time of his separation.  The applicant's use of illegal drugs clearly rendered the quality of his service below that meriting a fully honorable discharge at the time of his discharge and in spite of his rehabilitation efforts, it does not support an upgrade at this late date. 

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 this requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 April 1994, the date of his discharge.  Therefore, the time for him to file a request for correction of any error or injustice expired on 17 April 1997.  He failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_  __x__  _x__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.
2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____x______
          CHAIRPERSON



INDEX

CASE ID
AR20060013223
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/01
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
1994/04/18
DISCHARGE AUTHORITY
NGR 600-200, para 8-26q. .  
DISCHARGE REASON
Acts or Pattern of misconduct
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.