RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 February 2008
	DOCKET NUMBER:  AR20070015342 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Ms. Marla J. N. Troup

Member

Mr. David R. Gallagher

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 narrative reason for his separation, unfitness-drug abuse, be removed from his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states, in effect, that his original DD Form 214 did not have the disgraceful entry unfitness-drug abuse recorded.  He would like to have the entry removed because he has things to do to include going to the Department of Veterans Affairs.

3.  The applicant provides a copy of his DD Form 214 and a self-authored statement.

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's military service record shows that he entered active duty on  
2 September 1971.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 62B (Engineer Equipment Repairman).

3.  Between 30 July 1973 and 17 June 1974 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions: one for failure to go to his appointed place of duty; and two for being drunk and disorderly in a public place.

4.  On 24 August 1973, the applicant was admitted to the Heidelberg Medical Department Activity for a diagnosis of drug abuse.  On 10 September 1973, the applicant was mandatorily referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), for which he received counseling from
12 September 1973 to 5 December 1973.  His ADAPCP progress report shows that he had some desire to be rehabilitated and his alcohol and drug habits had decreased.  He was placed under a follow up status for 10 months.

5.  In February 1974, the applicant was tested positive for amphetamine abuse. The ADAPCP progress report states that as a result of the positive drug test he would create a hazard and morale problem in his unit.  On 14 March 1974, the applicant admitted that he used amphetamines occasionally but used heroin more frequently.  At that time the applicant was declared a rehabilitation failure.  Because that was his second diagnosis for drug abuse, the applicant was then considered for separation.

6.  On 15 April 1974, the applicant was convicted by a summary court-martial of one specification for stealing an AIWA tape player and a cassette tape (a value of more than $50.00).  His punishment consisted of forfeiture of $250.00, restriction for 30 days, and reduction to pay grade E-1.  His sentence was approved and duly executed.

7.  On 3 June 1974, the applicant's commander recommended that he be discharged under the provisions of Army Regulation 635-200 (Personnel Separation), Chapter 13-5(3) for unfitness-drug abuse, because he was resisting all attempts to be rehabilitated.

8.  On 6 June 1974, the applicant was advised of the rights available to him and the effects of a discharge under honorable conditions.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to submit a statement in his own behalf and his right to be represented by counsel. The commander also explained the applicant's waiver privileges and the withdrawal of any waiver made.  

9.  On 20 June 1974, the recommendation for separation was approved by the appropriate authority.

10.  On 8 August 1974, the applicant was discharged from active duty.  The DD Form 214 he was issued shows that he received a general discharge, with a Separation Program Designator code of JLF.  He had completed 2 years,  
11 months, and 7 days of active service.

11.  AR 635-5-1 (Separation Program Designator Codes), in effect at the time, states that the SPD code JLF denotes “unfitness-drug abuse.”

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations), Chapter 13 applied to separation for unfitness.  At that time, paragraph 13-5(3) provided for the separation of individuals for unfitness-drug abuse, use or possession for one's own use of controlled substance, or dependence thereon, elicited as a result of an individual volunteering for treatment or being identified by programmed biochemical testing, if the sole basis for separation.  When separation for unfitness-drug abuse was warranted a under honorable conditions discharge was appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for his separation, unfitness-drug abuse, should be removed from his DD Form 214.

2.  There is no evidence or indication that there was an error or injustice which caused the applicant to be discharged for unfitness-drug abuse.  The evidence shows the applicant was a drug abuse rehabilitation failure.

3.  Since the applicant was properly discharged, there is no reason to change the narrative reason for separation.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RTD__  __DRG__  __MJNT__  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.




____Richard T. Dunbar____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
2008/02/28
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.