IN THE CASE OF:

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080010006


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 the reenlistment eligibility (RE) code on his NGB Form 22 (Report of Separation and Record of Service) be changed from RE-3 to RE-1, and the statement in Box 18  be removed.

2.  The applicant states he failed a drug test; he had a prescription drug in his system for which he had no valid prescription.  He also states he was denied due process because, in effect, his unit started to process him for separation under the provisions of Army Regulation (AR) 135-178 for misconduct – drug abuse.  He acknowledged notification and requested a personal appearance hearing before a board of officers.  Instead, the separation process was stopped and he was allowed to ETS (separate upon Expiration of Term of Service).

3.  The applicant provides:

	a.  A copy of NGB Form 22A (Correction to NGB Form 22).

	b.  A 4 June 2003 memorandum, with subject:  Separation Under AR 135-178, Chapter 7.

	c.  A 6 June 2003 memorandum acknowledging notification and electing various rights (hearing, personal appearance, etc.).

	d.  An undated, unsigned memorandum, with subject:  Separation Under AR 135-178, Conditional Waiver Request, and labeled "COMMAND EXHIBIT 5-3."

	e.  Form "Community Counseling Center, dated 21 March 2006, showing the applicant attended 10 of 14 appointments in a drug and alcohol program.

	f.  The DD Fm 149 indicates that the applicant provided the NGB Form 22 (Report of Separation and Record of Service); however it was not attached when received for processing.

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.  With 4 years prior active Federal service in the US Navy, the applicant enlisted in a US Army Reserve (USAR) troop program unit (TPU) for 3 years on 17 August 1984.  He was relieved from his TPU assignment on 15 April 1985 due to unsatisfactory participation and transferred to the USAR Control Group (Reinforcement).  He was discharged from the USAR on 16 August 1987.

3.  The applicant enlisted in the Pennsylvania Army National Guard (PAARNG) for 5 years, serving from 9 February 1999 to 8 February 2004.  The applicant's PAARNG record shows he tested positive for marijuana on a random drug urinalysis test conducted on 11 April 2003.  On 27 May 2003, his unit initiated a DA Form 268 (Report to Suspend Favorable Personnel Actions – FLAG) for an adverse action – abuse of illegal drugs.

4.  Apparently, the applicant's chain of command initiated administrative action to separate him under the provisions of AR 135-178 for misconduct, drug abuse.  The action was stopped and the applicant was allowed to ETS.  Prior to his ETS, a second FLAG was initiated against him on 12 October 2003 for an APFT (Army Physical Fitness Test) failure.

5.  The applicant's NGB Form 22 with effective date of 8 February 2004 shows he was honorably discharged under the authority of NGR 600-200, paragraph 8-26i, by reason of ETS – No obligation.  He was assigned an RE code of RE-3.  A statement in Item 18 (Remarks) indicates the following, "FLAGGED FOR APFT 031012//FLAGGED FOR ADVERSE ACTIONS 030527 USE OF ILLEGAL DRUGS."

6.  National Guard Regulation 600-200 (Enlisted Personnel Management) states, in pertinent part, that discharge for ETS carries an RE 1 code, unless there is an approved bar to reenlistment or extension is in effect, or the soldier is ineligible for extension due to overweight, APFT failure, or a positive urinalysis, but is not barred at time of ETS, then an RE 3 code will be assigned.  Such assignment of an RE-3 code will be explained in Item 18 (Remarks).

DISCUSSION AND CONCLUSIONS:

1.  The applicant claims he was given an RE-3 code because a unit drug test found he had abused a prescription drug for which he had no valid prescription.  In fact, he tested positive for THC (tetrahydrocannabinol), the active ingredient in marijuana.

2.  The applicant was FLAGGED for his positive drug test.  Later he was FLAGGED once again for failing an APFT.  This created a situation wherein he was assigned an RE code of RE-3 per NGR 600-200, and which necessitated an explanation of that code in Item 18 (Remarks).  The RE code and the remarks are appropriate.

3.  The applicant contends he did not receive "due process" in his application, and that since his command's withdrawal of his administrative separation packet his case was never adjudicated.  Had the packet been processed, the applicant would have been subject to an under other than honorable conditions discharge.  By allowing him to serve to ETS, he was assured of an under honorable conditions discharge.  Given the irrefutable proof of his abuse of illegal, not prescription, drugs, the withdrawal of the administrative separation packet – an act which was totally within the purview of his commander – actually benefited the applicant.

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)                                         AR20080010006



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ABCMR Record of Proceedings (cont)                                         AR20080010006



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