IN THE CASE OF:	  

	BOARD DATE:	  10 JUNE 2008

	DOCKET NUMBER:  AR20080001403 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that Item 4b (Pay Grade) of his separation document (DD Form 214) be corrected to show his pay grade as E-5.  Also, he requests that Item 5 (Date of Birth) of his DD Form 214 be corrected to show his date of birth as 4 September 1960 not 20 October 1960.  Also, he requests that Item 28 (Narrative Reason for Separation) of his DD Form 214 be changed.

2.  The applicant states that his discharge paperwork shows he was discharged as an E-5, but his DD Form 214 shows his pay grade as an E-1.  He states, in effect, he was discharged from the Army due to a positive urinalysis test.  His unit had a no tolerance policy.  The narrative reason for his discharge, abuse of illegal drugs, should be corrected due to the fact there was no abuse involved.  He tested positive twice during the urinalyses which were given 7 days apart.

3.  The applicant provides a copy of his DD Form 214, personal statement, several DA Forms 4856 (General Counseling Form) which include his commander's intent to bar him from reenlistment and his commander's indication he intended to recommend him for separation, DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), and a memorandum from the Commander, Maine Recruiting Company with Subject:  Waiver Request dated  
25 April 2007. 

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 personnel record shows he enlisted in the Regular Army on 7 May 1979.  He completed the necessary training and was awarded the military occupational specialty (MOS) 11B (Infantryman).

3.  On 19 July 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana and hashish.  His punishment included a reduction from pay grade E-6 to E-5.

4.  He was processed for elimination from the Army under the provision of Army Regulation 635-200 (Personnel Separation) for Commission of a Serious Offense (Abuse of Illegal Drugs).  His highest pay grade held was E-6.

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for commission of a serious offense, under the provision of Army Regulation 635-200, Chapter 14-12c and its effect, of his rights available to him, and the effects of any action taken by him in waiving his rights.  He understood that he is entitled to have his case considered by an administrative separation board because he has six or more years of active or reserve service at the time of separation and being considered for a separation under other than honorable conditions.  The applicant submitted a statement on his own behalf, waived personal appearance before an administrative separation board, and waived representation by counsel.

6.  He further understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued and he understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State Laws.  He may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge.

7.  His commander forwarded the recommendation for separation to the approving authority.  On 18 September 1985, the commanding general approved the recommendation for elimination under the provisions of Army Regulation  
635-200, chapter 14-12c, commission of a serious offense and directed that the applicant be reduced to pay grade E-1.

8.  His DD Form 214 shows he received a under than honorable conditions discharge for misconduct-abuse of illegal drugs.  He was reduced to the lowest grade of E-1, effective 18 September 1985.  He had completed 6 years,  
4 months, and 18 days of Net Active Service This Period.

9.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Human Resources Command (USAHRC), St. Louis, Missouri.  The USAHRC stated, in effect, that the applicant was reduced to private (PVT)/E-1 by a memorandum signed by the applicant's commanding General.  Also, his discharge Orders Number 267-0239 dated 24 September 1985 shows he was reduced to PVT/E-1.  Both documents were prepared subsequent to the documents the applicant submitted that shows his rank as staff sergeant (SSG)/E-6.

10.  A copy of the advisory opinion was furnished to the applicant, but the applicant did not submit a rebuttal.

11.  Item 4 of his DD Form 214 shows the entry E-1.

12.  Item 5 of his DD Form 214 shows the entry 20 October 1960.

13.  Item 28 of his DD Form 214 shows the entry Misconduct-Abuse of Illegal Drugs.

14.  The applicant's initial enlistment contract shows that his date of birth is  
4 September 1960.  According to his DD Form 1966-1/7 (Application for Enlistment-Armed Forces of the United States), his date of birth was verified using his birth certificate prior to his enlistment.  Also, his DD Form  
4/1 (Enlistment/Reenlistment Document-Armed Forces of the United States) shows his date of birth as 4 September 1960.

15.  Army Regulation 635-5 (Separation Documents), then in effect, establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs that you may use DD Form 4/4 (Enlistment/Reenlistment Document-Armed Forces of the United States) as a source document to enter date of birth in item 5 (Date of Birth) of the DD Form 214.  Enter date of birth as year, month, and day.
16.  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.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below  
E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  When a Soldier is discharged under other than honorable conditions, regulations require his reduction to the lowest grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that Item 4b and Item 5 of his DD Form 214 should be corrected to show pay grade E5 and his date of birth as 4 September 1960.  He also requests that his narrative reason for discharge be corrected.

2.  Evidence of record shows the applicant was properly reduced to the lowest pay grade, E-1, upon approval of his separation for misconduct-abuse of illegal drugs effective 18 September 1985.  Therefore, he was separated as an E-1.  As such, he is not entitled to correction of his DD Form 214 to show pay grade E-5 or his narrative reason for separation.

3.  Evidence of record shows that the applicant's date of birth was verified as  
4 September 1960 upon his initial enlistment into the Army using his birth certificate.  Therefore, he is entitled to correction of his records to show in Item 
5 of his DD Form 214, 4 September 1960.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X____  __X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant's date of birth as 4 September 1960 in Item 5 of his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to Item 4b and Item 28 of his DD Form 214.




       _   __X_____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080001403



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ABCMR Record of Proceedings (cont)                                         AR20080001403



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