IN THE CASE OF:	

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080012329 


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 that he be given due process in the processing of his discharge from the U.S. Army Reserve (USAR).

2.  The applicant states he was a victim of a gross injustice when he was denied due process because of a positive test for controlled substances.  He further states that he had requested an administrative hearing on 26 October 1996.  He states the drug test was wrong because he was taking medication for post-traumatic stress disorder (PTSD) at the time.  He further states a hearing was scheduled for 27 September 1997 but his expiration of term of service (ETS) was 
1 September 1997.

3.  The applicant provides, in support of his application, eight pages from his military personnel record; an RPAS (Retirement Points Accounting System) statement, dated 27 May 2008; a DD Form 2656 (Data for Payment of Retired Personnel; and a direct deposit slip.

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 United States Marine Corps on 29 January 1964 and was released from active duty and transferred to the Marine Corps Reserve on 10 December 1967.  On 14 October 1981, the applicant enlisted in the New York Army National Guard (NYARNG).  On 20 April 1992, the applicant was discharged from the NYARNG and the Reserve of the Army.

3.  On 2 March 1994, the applicant enlisted in the USAR for a period of 3 years.  He was assigned to a Troop Program Unit (TPU) effective 27 June 1994.

4.  On 14 July 1996, during a urinalysis test, the applicant tested positive for THC (Tetrahydrocannabinol [psychoactive compound in marijuana]) and cocaine.

5.  On 26 October 1996, the applicant signed a statement acknowledging he had been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Chapter 7, paragraph
7-11c.1 (Abuse of Illegal Drugs) of Army Regulation 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel) and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He also acknowledged that if he had more than 6 years of total active and/or reserve military service at the time of notification of separation action he was entitled to have his case considered by an administrative separation board.

6.  The applicant requested to have his case considered by an administrative separation board and to appear before that board.  The applicant submitted statements in his own behalf.  He requested consulting counsel and representation by counsel for representation.

7.  The applicant also understood that he may expect to encounter substantial prejudice in civilian life if his service is characterized as under honorable conditions or under other than honorable conditions.  He further understood that as a result of a characterization of service of under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.



8.  On 8 December 1996, the applicant's commander notified him that action was being initiated to separate him from the USAR for misconduct by reason of his testing positive for THC and cocaine on 14 July 1996.  The commander advised the applicant he was recommending a general discharge under honorable conditions.  The applicant's intermediate commanders recommended that he be discharged with a general discharge under honorable conditions.

9.  On 2 February 1997, a memorandum from the Deputy Staff Judge Advocate notified the applicant's commander that the separation package in the case of the applicant did not include a record of the applicant having received notice of the separation action which was initiated on 8 December 1996. 

10.  On 2 February 1997, the applicant extended his enlistment for a period of 
6 months.  His new ETS was 1 September 1997.

11.  On 9 March 1997, the applicant's commander initiated a Bar to Reenlistment Certificate, recommending that the applicant be barred from reenlistment.  The final disposition of this action is not contained in the available record.

12.  On 3 May 1997, a memorandum from the Deputy Staff Judge Advocate notified the applicant's commander that the separation package in the case of the applicant had been reviewed and was found to be legally sufficient.  Any additional documents that were provided to the Deputy Staff Judge Advocate were not available for review.

13.  On 26 August 1997, a memorandum from Headquarters, 77th USAR Command, Fort Totten, Flushing, New York, notified the applicant that a Board of Officers would meet on 27 September 1997 to consider his case for discharge from the USAR due to misconduct, illegal possession of a controlled substance (THC and cocaine).  The memorandum notified the applicant that he had a right to be present, present evidence, and call witnesses at the hearing.  The memorandum further notified the applicant that his failure to appear at the hearing constituted a waiver of his appearance at the hearing and the Board would proceed in his absence.  There is no record of the Board proceedings or recommendation.  There is no evidence the Board was held.

14.  Department of the Army, 77th Regional Support Command, Fort Totten, Orders 272-10, dated 29 September 1997, discharged the applicant from the USAR effective 29 September 1997.  The authority for discharge listed on these orders is Army Regulation 135-178, Chapter 11, N1.


15.  There were no service medical records, civilian medical records, or medical treatment records available for review.

16.  Chapter 7, paragraph 7-11c.1 of Army Regulation 135-178, then in effect, provided for the discharge action for enlisted members of the USAR for abuse of illegal drugs.  This regulation provided that first time drug offenders in the rank of sergeant and above and all Soldiers with 3 or more years of total military service (Regular and Reserve) will be processed for discharge on discovery of a drug offense.  This regulation further provided in pertinent part, that an enlisted member separated under this chapter was normally furnished a characterization of service of under other than honorable conditions.  The regulation also provided that a discharge under honorable conditions could be provided if warranted by the member's overall record.  In addition, this regulation provided that a member could not receive a characterization of honorable if the member had completed entry level status unless the member's record was otherwise so meritorious that any other characterization would clearly be inappropriate.

17.  Paragraph 11-1 (Completion of terms of enlistment or period of statutorily obligated service), Chapter 11 (Expiration of Service Obligation) of Army Regulation 135-178, then in effect, provided that upon expiration of term of enlistment a Soldier would be discharged.  Paragraph 11-2 (Characterization of Service) provided that a Soldier being discharged on expiration of enlistment would be awarded a character of service of honorable unless an uncharacterized description of service is required.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was the victim of a gross injustice and denied due process because of a positive test for controlled substances.  He contends that he was taking medication for PTSD at the time of the drug test.  He contends that he never received the administrative hearing that he requested.

2.  The applicant tested positive for THC and cocaine in a urinalysis test.  There is no evidence available that shows the applicant was being treated for PTSD or that he was prescribed medication that contained THC or cocaine.

3.  The applicant was entitled to an administrative hearing based on his being processed for discharge due to drug abuse that could result in a discharge under other than honorable discharge and his having more that 6 years of total active and/or reserve military service.  There is no evidence that a hearing was ever held.

4.  However, the applicant was not discharged based on drug abuse.  The orders discharging the applicant from the USAR show that he was discharged by authority of Army Regulation 135-178, chapter 11, which is expiration of service obligation – completion of term of enlistment or period of statutorily obligated service].  The characterization of his service is shown as honorable.  Based on the reason for discharge, there is no entitlement or need for an administrative hearing.  Therefore, there is no injustice or violation of the applicant's right to due process.

5.  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 that 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)                                         AR20080012329



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ABCMR Record of Proceedings (cont)                                         AR20080012329



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