RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  07 February 2008
	DOCKET NUMBER:  AR20070014030 


	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

Ms. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 that he be furnished a "deleted copy" of his Certificate of Release or Discharge from Active Duty (DD Form 214).

2.  The applicant states, in effect, that the Narrative Reason for Separation and the Separation Authority currently reflected on his DD Form 214, has been corrected; however, he was never provided a copy of the corrected DD Form 214. 

3.  The applicant provides in support of his application, a copy of a letter from this Board, dated 16 February 1988, notifying him that a favorable decision was made in his case; a copy of a letter from the United States Army Reserve Personnel Center dated 14 March 1988, informing him of the decision made in his case; and an undated notification from the Office of the Deputy Chief of Staff for Personnel, Subject:  Correction of Military Records, Positive Urinalysis Tests During the Period April 27, 1982 through October 31, 1983.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 4 November 1975, the applicant enlisted in the Army in Richmond, Virginia, for 3 years, in the pay grade of E-1.  He successfully completed his training as a material supplyman.  

3.  After completing 2 years, 6 months and 21 days of total active service, the applicant was honorably discharged on 24 May 1978, the purpose of immediate reenlistment.  He reenlisted in the Army on 25 May 1978, for 3 years.  He reenlisted for another 3-year tour of duty on 31 April 1981.


4.  The records available indicate that while the applicant was participating in an Army Drug testing program, the specimens he submitted on 1 February, 4 April, 7 April, 18 April, and 2 June 1983 were tested by urinalysis and found to contain evidence of illegal drugs. 

5.  On 22 July 1983, the applicant was barred from reenlistment based on the positive urinalyses of the specimens he submitted on 1 February, 4 April, 7 April, and 2 June 1983. 

6.  The applicant was referred to the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 19 August 1983.  He was informed that, as part of his treatment, he must abstain from further use of illegal drugs; that he must not abuse alcohol; and that he must cooperate in counseling and education programs.

7.  On 31 October and 21 November 1983, the applicant submitted urine specimens which tested positive for illegal drugs.  As a result, he was declared a rehabilitation failure.

8.  On 4 January 1984, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, due to drug and alcohol rehabilitation failure.  His commander cited the applicant's submitted periodic urine specimens, which yielded positive tests for marijuana on 31 October and 21 November 1983, as the basis for the recommendation for discharge.  The applicant acknowledged receipt of the recommendation and, after consulting with counsel, he requested consideration of his case by a board of officers.

9.  A board of officers convened on 6 February 1984, to determine whether the applicant should be discharged for personal abuse of drugs.  The board of officers found the applicant's proposed separation was supported by a preponderance of the evidence.  The board recommended that he be separated from the Army in accordance with Army Regulation 635-200, chapter 9, and that his service be characterized as honorable.

10.  The appropriate authority approved the recommendation for discharge on 24 February 1984.  Accordingly, on 15 March 1984, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 9, as a drug abuse rehabilitation failure.  The DD Form 214 that he was furnished at the time of his discharge shows his Narrative Reason for Separation as drug 
abuse-rehabilitation failure. 

11.  After submitting an application to this Board, requesting correction of his military records by voiding his honorable discharge; restoring him to active duty; promoting him to the pay grade of E-6; removing all references to his discharge and positive urinalyses; and upgrading his reentry code, the applicant was informed by the staff of the Board on 16 February 1988, that a favorable decision had been made in his case on 6 January 1988.  The Board directed that all references related to the urinalyses of the specimen he submitted on 4 April, 7 April, and 18 April 1983, be deleted from his Army military and medical records, including references from the bar to reenlistment certificate dated 20 July 1983.  The Board further directed that so much of his application, which was in excess of the foregoing, be denied.  The applicant was provided a complete copy of the decision made by the Board.

12.  On 14 March 1988, the United States Army Reserve Personnel Center also notified the applicant of the Board's decision.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

14.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of release from active duty or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The narrative reason and authority for separation were appropriate considering all of the facts of the case.

2.  The applicant's contentions have been noted.  However, they are not supported by the evidence of record.  The available records show that his records were corrected in accordance with the findings of the Board that convened on 6 January 1988, and that all references related to the urinalyses of 



the specimen he submitted on 4 April, 7 April, and 18 April 1983, were deleted from his Army military and medical records, including references from the bar to reenlistment certificate dated 20 July 1983.

3.  The applicant submitted a total of seven specimens which tested positive for illegal drugs.  Out of the seven specimens that he submitted for urinalyses, a total of three were deleted from his military and medical records as directed by the Board.  Consequently, four positive specimens remain a part of his official records and only two specimens were cited as the basis for his separation.  The two specimens cited were dated 31 October and 21 November 1983 and they were submitted and tested positive for marijuana after he entered his drug rehabilitation program.  He was discharged under the provisions of Army Regulation 635-200, as a drug abuse rehabilitation failure, and this information was properly included on his DD Form 214.

4.  There is no evidence in the available records, nor has the applicant submitted any evidence to support his contentions that any corrections were ever officially made to his DD Form 214.  At the time of his discharge he was provided a copy of his DD Form 214 that does not reflect the Special Additional Information, which is normally reflected at the bottom of the form.  However, he was provided the only copy, as there is no copy of the DD Form 214, which does not reflect the Special Additional Information, contained in his official military record.  

5.  There was absolutely no action previously taken by the Board which would have resulted in information being deleted from the applicant's DD Form 214.  The Narrative Reason for Separation and the Separation Authority currently reflected on his DD Form 214 are correct.

6.  In accordance with the applicable regulation, his DD Form 214 was prepared to reflect his service as it existed at the time of his discharge.  Therefore, there is no basis for granting the applicant's request. 

7.  In order to justify correction of a military record the applicant must show 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.

8.  In view of the foregoing, there is no basis for granting the applicant's request.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP__  __RML__  __QAS__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





____William D. Powers_____
          CHAIRPERSON




INDEX

CASE ID
AR20070014030
SUFFIX

RECON

DATE BOARDED
20080207
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  189
110.0000/DISCHARGE DOCUMENT
2.  191
110.0200/REASON AND AUTHORITY
3.

4.

5.

6.