IN THE CASE OF:	  

		BOARD DATE:	  28 August 2008

		DOCKET NUMBER:  AR20080009240 


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 28 (Narrative Reason for Separation) of his separation document (DD Form 214) be changed.  

2.  The applicant states, in effect, that he was driving his car, which was pulled over at the gate coming on to post, and three friends in the backseat placed their marijuana in his ashtray, where it was found.  He claims he was unaware they had marijuana in his car.   

3.  The applicant provides a self-authored letter and Congressional Inquiry in support of his application.  

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 record shows he enlisted in the Regular Army and entered active duty on 1 October 1984.  He successfully completed One Station Unit Training (OSUT) at Fort Leonard Wood, Missouri, and was awarded military occupational specialty (MOS) 12B (Combat Engineer) on 18 January 1985. 

3.  The applicant's record shows he was promoted to private first class (PFC) on 1 May 1985, and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he received the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) the following two separate occasions for the offenses indicated:  5 June 1985, for disobeying a lawful order; and 3 December 1985, for wrongfully using marijuana between 10 September and 10 October 1985.  

5.  On 6 December 1985, he was detained by military police for the possession of marijuana, and on 23 January 1986, the applicant was informed of his unit commander's intent to process him for separation under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct based on his commission of a serious offense, illegal drug abuse.  The unit commander cited the applicant's positive urinalysis for marijuana on 10 September 1985, and his possession of marijuana on 6 December 1985, as the primary basis for the separation recommendation.  The unit commander also indicated that the applicant had an attitude problem and record of misconduct.  

6.  On 27 January 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to him and the effect of a waiver of those rights.  

7.  On 14 March 1986, the separation authority approved the applicant's discharge and directed the applicant receive a general, under honorable conditions discharge (GD).  On 21 March 1986, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he held the rank of PV1 and that he had completed a total of 1 year, 5 months, and 21 days of creditable active military service.  Item 25 (Separation Authority) shows he was separated under the provisions of Paragraph 14-12d, Army Regulation 635-200; Item 26 shows he was assigned a Separation Program Designator (SPD) code of JKK, and Item 28 (Narrative Reason for Separation) lists the reason for his separation as misconduct-drug abuse.  
8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  The regulation provides for the separation of members for the commission of a serious offense, and defines the abuse of illegal drugs as a serious offense. 
An under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.  However, the separation authority may issue a GD or honorable discharge (HD) if warranted by the member's overall record of service.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct-alcohol-drug abuse.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his narrative reason for separation should be changed because his separation was based on an offense he did not commit was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

3.  Further, the record confirms the primary reason for the applicant's separation was his repeated abuse of illegal drugs, as evidenced by his positive urinalysis for marijuana on 10 September 1985, and his possession of marijuana on 6 December 1985.  As a result, it appears he was properly assigned a SPD code of JKK and the narrative reason for separation of misconduct-drug abuse, in accordance with the applicable regulation.  Therefore, there appears to be no error or injustice related to this matter.  

4.  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.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.



      ________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)                                         AR20080009240



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ABCMR Record of Proceedings (cont)                                         AR20080009240



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