RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 March 2008
	DOCKET NUMBER:  AR20070014165 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. William D. Powers

Member

Mr. Jerome L. Pionk

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 the reason and authority shown in his discharge packet and separation order from the United States Army Reserve (USAR) be changed so that he may be eligible to reenlist in the Regular Army. 

2.  The applicant states, in effect, that his discharge proceedings and appeal were not handled properly. 

3.  The applicant provides copies of several documents from his Official Military Personnel File (OMPF), copies of laboratory results, and a copy of his Standard Form (SF) 50 (Notification of Personnel Action) in support of his request.  He also provides pre-employment lab results, dated March 1998.

4.  The applicant also provides several character reference letters and letters of recommendation to support a change in the reason for his discharge.  They attest to his character, dedication, responsibility, and involvement in community activities and dedication and service to his employer.  

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.  The applicant enlisted in the United States Army Reserve (USAR) on 15 January 1991, for 8 years, with an established expiration term of service (ETS) date of 14 January 1999.  He enlisted in the Regular Army on 21 March 1991. He was trained as a light weapons infantryman, in military occupational specialty (MOS), 11B.  He was promoted to pay grade E-4 on 1 January 1993. 

3.  The applicant was released from active duty on 20 March 1994.  He was transferred to a TPU (troop program unit), of the USAR.  The applicant reenlisted on 21 February 1999 for 6 years.
4.  On 24 February 1999, the applicant’s urine specimen submitted on 
20 February 1999, tested positive for cocaine.  

5.  On 17 March 1999, the applicant's commander notified him that he was initiating action to separate him from the USAR under the provisions of Army Regulation 135-178, chapter 7, paragraph 7-11c(12), for abuse of illegal drugs.   The commander based his recommendation on the applicant’s wrongful use of cocaine.  The commander recommended that he receive an honorable discharge.  The applicant was informed that the intermediate commander and separation authority were not bound by the commander's recommendation.  The separation authority could direct that his service be characterized as honorable or general, under honorable conditions. 

6.  The applicant provided copies of laboratory reports which show that he tested negative for illegal drugs on 31 March 1999.

7.  The applicant was advised of his rights and he was appointed military counsel.  The commander advised him that separation actions were suspended for 30 days to give him the opportunity to exercise his rights.  Notification was mailed to the applicant via certified mail with restrictive delivery and return receipt requested.  Notification was signed for, by an individual with the same last name as the applicant, on 19 March 1999.  The applicant did not personally acknowledge notification.

8.  On 19 March 1999, the commander recommended that the applicant be separated from the service under the provisions of Army Regulation 135-178, chapter 7, paragraph 7-11c(1), prior to his ETS. 

9.  On 2 June 1999, the applicant was reduced in rank from sergeant to private and discharged under the provisions of Army Regulation 135-178 (NA), for misconduct, with an under other than honorable conditions (UOTHC) discharge.  

10.  On 20 December 1999, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC discharge.  The ADRB determined that the discharge was proper but the characterization of service was inequitable and voted to change the characterization to general, under honorable conditions, but voted not to change the reason for discharge.  





11.  Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Paragraph 1-3 states, in pertinent part, that orders discharging a Soldier will not be revoked or the effective date changed after the effective date of discharge unless there is evidence of manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as rank, social security number, or misspelled name.

12.  Paragraph 2-20, of the same regulation, states that when a Soldier is to be discharged with a discharge under other than honorable conditions, the convening authority will direct the immediate reduction of the individual to the pay grade, E-1.  

13.  Chapter 7 of Army Regulation 135-178 establishes the policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, patterns of misconduct, commission of a serious offense, and related charges.  Paragraph 7-11c(1) states, in pertinent part, that abuse of illegal drugs is a serious offense and that discharge action will normally be based on commission of the offense.  It also states that a single drug abuse offense may be combined with one or more disciplinary infractions, or incidents of other misconduct, for discharge.  Individuals in pay grade E-5 and above, and all Soldiers with 3 or more years of total military service (Regular and Reserve)
will be processed for separation upon discovery of a drug offense.  Second time drug offenders must be processed for separation after a second offense.

14.  Army Regulation 680-29 governs Military Personnel, Organization, and Type of Transaction Codes.  Chapter 4 covers Types of Transaction code used in the 
exchange of personnel data required by AR 680-5.  Section VI contains the Personnel Status Codes for USAR Personnel Not on Active Duty.  It states in
pertinent part that code "NA" will be used for discharge due to misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant tested positive for cocaine and sufficient evidence was found to warrant separation from the USAR, with a UOTHC for misconduct.  




2.  The applicant's reason for separation is correct and in accordance with regulations then in effect.  He was also assigned the proper personnel status code of "NA" for misconduct.  This code is proper for USAR personnel not on active duty when separated for misconduct.

3.  The applicant alleges that his discharge proceedings and appeal were not handled properly; it is noted that the applicant was advised of his rights and by appointed military counsel.  His separation action was suspended for 30 days to give him the opportunity to exercise his rights.  Notification was mailed to him via certified mail with restrictive delivery and return receipt requested.  Notification was signed for by an individual with the same last name as the applicant.  There is no evidence available to show he consulted with counsel to exercise his rights. He was discharged according to regulation.

4.  The evidence shows that the applicant applied to the ADRB for an upgrade 
of his discharge.  The ADRB determined that his discharge was proper but the characterization of his discharge was inequitable.  The ADRB voted to change the characterization to general, under honorable conditions, but voted not to change the reason for his discharge.  

5.  The documents provided by the applicant were considered; however, these documents are not sufficiently mitigating to warrant a change in the reason for his discharge. 

6.  In view of the circumstances in this case, the applicant is not entitled to a change to the reason for his discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___A____  __WDP__  __JP____  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.




___James E. Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20070014165
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080304
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19990602
DISCHARGE AUTHORITY
AR 135-178, chap 7
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.