RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060015641 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 to correct his records by changing the narrative reason for his discharge.

2.  The applicant states, in effect, that a few weeks before he was discharged the Military Police (MP) found him in a ditch at the local village.  The MPs took him to the Aid Station and then to the 121st Evacuation hospital in Seoul, South Korea, where he was tested for drugs.  He states after he returned to his company he was discharged for drug abuse.  He states, in effect, someone slipped him a very toxic drug which he had no knowledge of and it altered his mind.  He states he was only 17 years old.

3.  The applicant provides a written statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 22 October 1973.  The application submitted in this case is dated 31 July 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.  The applicant's records show that he entered active duty on 29 December 1972.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11E1O (Armor Crewman).

4.  On 3 June 1973, the applicant was assigned to Company A, 1st Battalion, 73rd Armor Infantry Division in the Republic of Korea.

5.  On 10 September 1973, the applicant received notification that he was being considered for separation under the provisions of Army Regulation  
635-200 (Personnel Separation), paragraph 13-5a(3) for unfitness based on drug addiction and drug use or possession.  In that recommendation the applicant's commander stated that the applicant "is continuously using drugs."  This recommendation also documents that the applicant had been counseled three times for drug abuse, once for destroying Government property, and once for military courtesy.

6.  On 11 September 1973, the applicant waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, submitted no statement on his own behalf, and waived representation by an appointed counsel.  The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

7.  His commander forwarded the recommendation for separation to the separation approving authority.

8.  Forwarded with the recommendation were four statements written by the applicant's chain of command which attested to the applicant's drug abuse, duty performance, and personal conduct.

9.  On 4 October 1973, the separation approving authority approved the request and directed that the applicant be furnished a General Discharge Certificate.

10.  On 22 October 1973, the applicant was discharged under the provision of Army Regulation 635-200, paragraph 13-5a(3), due to unfitness drug abuse.  He completed 9 months and 24 days of active service characterized as under honorable conditions.

11.  Item 26 (Separation Code) on his DD Form 214 shows “384."

12.  The Army Council of Review Boards upgraded the applicant's discharge to fully honorable on 28 March 1980.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) , in effect at the time, states the reason for discharge based on separation code “384” is “Unfitness Drug Abuse” and the regulatory authority is Army Regulation  
635-200, paragraph 13-5a(3).

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Paragraph 13-5a(3) of this regulation, in effect at the time, provides for separation due to unfitness for drug abuse, or unauthorized use, sales, possession, or transfer of any controlled substance, or introduction of such controlled substance onto any Army installation or other Government property under Army jurisdiction.  The regulation requires that 
separation action will be taken when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unfitness under this regulation was characterized as under honorable conditions.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant request that his records be corrected by changing the narrative reason for his discharge.

2.  The applicant was counseled on three occasions for his drug use.  Therefore, contrary to the applicant's contention, his discharge was not based on a single incident.

3.  The governing regulation, in effect at the time of the applicant’s separation, states the reason for discharge based on separation code “384” is “Unfitness Drug Abuse” and the regulatory authority is Army Regulation 635-200, paragraph 13-5a(3).  Therefore, the reason for separation in item 28 of his DD Form 214 is correct.

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 March 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
27 March 1983.  The applicant did not 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

____rsv__  ___dll___  ____rsv_  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.




_______William F. Crain_______
          CHAIRPERSON




INDEX

CASE ID
AR20060015641
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070531
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.