RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20070000046 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson

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 under other than honorable conditions discharge be upgraded to a discharge under honorable conditions.

2.  The applicant states, in effect, that on the reverse side of the Standard Form (SF) 93 (Report of Medical History) that he completed on 12 June 1989, he revealed he had used marijuana and other drugs, two or three times about
3 or 4 weeks prior.  He also states, in effect, that it was known during his enlistment that he had a drug problem, he received a waiver to enlist, but did not receive any counseling or drug rehabilitation.  The applicant further states, in effect, that he has since entered and completed a drug rehabilitation program while in the Texas Department of Criminal Justice.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated
11 December 2006.  He also indicates that he provides a copy of a SF 93, dated 12 June 1989; however, the document was not included with the application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 25 November 1991, the date of his discharge.  The application submitted in this case is dated 11 December 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 military service records show that he enlisted in the Army National Guard (ARNG) for a period of 8 years on 10 August 1989.  He was ordered to initial active duty for training (ADT) on 21 August 1989, completed basic combat training and advanced individual training, and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The applicant was relieved from ADT on 18 January 1990 and assigned to Detachment 1, Company E, 111th Engineer Battalion, Cameron, Texas.  The highest grade the applicant attained was private/pay grade E-1.
4.  The applicant's military service records contain a DD Form 1966 (Record of Military Processing - Armed Forces of the United States), dated 9 June 1989, completed upon the applicant’s initial entrance processing into the Armed Forces of the United States.

     a.  Item 36 (Character and Social Adjustment) instructs, “[i]f your answer to every question is truthfully “No,” indicate so in the appropriate space.  If your answer is “Yes,” indicate so in the appropriate space and give details in Item
39 “Remarks.”  A “Yes” answer will not necessarily disqualify you for enlistment; it will depend on the circumstances surrounding the situation.”  Item 36a further instructs that “Questions (1), (2), and (3) below concern possession, supply, use without a prescription of marijuana, narcotics, LSD or other dangerous drugs.  A “Yes” answer to (3) has no bearing on your eligibility to enlist or be commissioned but is essential to accurate job classification.  Additional screening will occur during basic training or officer training school.”

     b.  In response to Item 36a(1), “Have you ever used narcotics, LSD or other dangerous drugs?”; Item 36a(2), “Have you ever been a supplier of narcotics, LSD or other dangerous drugs or marijuana?”; and Item 36a(3), “Have you used marijuana at any time in the past six months?” the applicant placed his initials (i.e., “MED”) under the column heading “NO” in response to each question.
Section V (Certification) of the DD Form 1966 shows that on 9 June 1989 the applicant placed his signature on the form certifying the information given by him was true, complete, and correct to the best of his knowledge and belief.  

5.  The applicant's military service records contain a SF 93 (Report of Medical History), dated 12 June 1989, prepared by the applicant prior to his medical examination for enlistment. The reverse side of this document shows, in pertinent part, in response to “Questioning Reveals” the physician indicated “Yes” for marijuana use and other drug abuse and entered the following two notes,
“2 - 3x = Last use 3 - 4 wks ago (May 89)” and “Cocaine - 1x - May 89.”

6.  The applicant's military service records contain a SF 88 (Report of Medical Examination), dated 12 June 1989, documenting the applicant’s medical examination for enlistment.  Item 77 (Examinee) shows that the physician indicated that the applicant was not qualified for enlistment in the ARNG.  However, Item 74 (Summary of Defects and Diagnoses) shows that a waiver was recommended and granted for a hearing defect and defective vision.

7.  The facts and circumstances pertaining to the applicant’s administrative separation proceedings are not in his Official Military Personnel File (OMPF).  However, the applicant's OMPF does contain a NGB Form 22 (Report of Separation and Record of Service), with an effective date of 25 November 1991. This document shows the authority for the applicant’s separation was paragraph 8-26q, NGR 600-200, and the reason was for acts or patterns of misconduct.  This document also shows that the applicant’s character of service was under other than honorable.  At the time of his separation the applicant had completed 2 years, 3 months, and 16 days total service for pay.

8.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

9.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

10.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), Chapter 8 (Discharge), in effect at the time of the applicant’s discharge, provides guidance and reasons for discharging a Solder from both the State ARNG and the Reserve of the Army.

11.  Paragraph 8-26 (Discharge from State ARNG and/or Reserve of the Army) subparagraph q (Acts or Patterns of Misconduct), provides that an administrative discharge board is required (unless waived by the Solder) when the Soldier has
6 or more years of total military service or the separation authority considers discharge under other than honorable conditions appropriate.  This subparagraph also provides that all Soldiers identified as abusers of illegal drugs will be referred for treatment or counseling as appropriate, regardless of the commander’s intent to take administrative, non-judicial or judicial actions.  This subparagraph also provides that those Soldiers the discharge authority decides to retain will, as a condition of retention, be required to enroll in a rehabilitation program as soon as possible, but within 90 days of notification.  Enrollment and participation cost will be at no expense to the government.  Commanders will immediately begin discharge actions for those Soldiers who refuse or fail to enroll in a rehabilitation program as a result of committing a drug offense.  This paragraph further provides that second-time drug offenders, in the rank of private through sergeant major, must be processed for discharge.

12.  National Guard Regulation 600-200, Section II (Characterization of Service/ Description of Service, Discharge Certificate, and Order), paragraph 8-7 (Types of administrative discharges and character of service), subparagraph a, 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 ARNG and Reserve of the Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  An honorable characterization must be awarded to a Soldier upon expiration of term of service, fulfillment of service obligation, or when required under the specific reason for discharge.

13.  National Guard Regulation 635-200, paragraph 8-7b, provides that a general discharge is a separation from the ARNG and as a Reserve of the Army of a Soldier whose discharge from such service is under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but whose record is not sufficiently meritorious to warrant an honorable discharge.
A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically authorizes such characterization by State Code.

14.  National Guard Regulation 635-200, paragraph 8-7c, provides that a discharge under other than honorable conditions is an administrative separation from the ARNG and as a Reserve of the Army under conditions other than honorable.  The discharge may be issued for misconduct, fraudulent entry, or homosexuality.

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 contends, in effect, that his under other than honorable conditions discharge should be upgraded to an under honorable conditions discharge because it was known by the Army during his enlistment processing that he had a drug problem, he received a waiver to enlist, but did not receive any counseling or drug rehabilitation.  The applicant also contends, in effect, that his discharge should be upgraded because, since his discharge from the Army, he has completed a drug rehabilitation program while in the Texas Department of Criminal Justice.

2.  The evidence of record shows that upon application for entrance into the Armed Forces of the United States on 9 June 1989, the applicant denied any use of marijuana and/or other drugs.
3.  The evidence of record also shows that 3 days later, on 12 June 1989, the applicant revealed to the physician conducting his entrance medical examination that he had previously used marijuana and cocaine on a few occasions and that he had last used the substances approximately a month earlier.  Therefore, in effect, the applicant admitted to the physician a history of some recreational drug use (approximately 1 month prior to his application for entrance into the U.S. Armed Forces) and indicated that he was no longer using drugs.

4.  The evidence of record shows that, upon completion of the applicant’s medical examination for enlistment, he was granted a waiver for a hearing defect and defective vision.

5.  The evidence of record shows that upon the applicant’s initial processing into the Armed Forces of the United States, he was instructed to answer every question truthfully.  In addition, he was instructed that a “Yes” answer to the question, “Have you used marijuana at any time in the past six months?” would have no bearing on his eligibility to enlist, but is essential to accurate job classification and that additional screening will occur during basic training.  The evidence of record also shows that the applicant was untruthful by answering “No” to the question.  In effect, the evidence of record shows that the applicant committed fraud when he initially applied for entrance into the Army on 9 June 1989.  Moreover, there is no evidence showing that the applicant was granted a waiver for “a drug problem.”  In addition, it is reasonable to conclude that the applicant’s willful intent to deceive Army officials prevented the timely initiation of any additional screening to occur during the applicant’s basic training. 

6.  During the period of service under review, the evidence of record confirms the applicant’s misconduct in that he failed to truthfully acknowledge his use of drugs upon his initial application for entry into the U.S. Army.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a discharge under honorable conditions.

7.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  Therefore, since there is no evidence of record to show that the applicant's under other than honorable conditions discharge under the provisions of National Guard Regulation 635-200 was not in accordance with the regulatory guidance in effect at the time, there is no basis to change his discharge.

8.  The applicant's claim that he completed a drug rehabilitation program while in the Texas Department of Criminal Justice was carefully considered.  While his post-service commitment to a goal and personal accomplishment is commendable, it is not so meritorious as to warrant upgrade of his discharge.

9.  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.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 November 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
24 November 1994.  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

___JEA __  ___JLP _  ___JBM _  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.




___James E. Anderholm____
          CHAIRPERSON




INDEX

CASE ID
AR20070000046
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/06/26
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19911125
DISCHARGE AUTHORITY
NGR 600-200, Paragraph 8-26Q
DISCHARGE REASON
Acts of Patterns of Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.