IN THE CASE OF:	 

		BOARD DATE:	       31 March 2009

		DOCKET NUMBER:  AR20080017545 


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 correction of his military records to remove his nonjudicial punishment (NJP) dated 30 August 2004, and to change his Separation Program Designator Code (SPD).

2.  The applicant states, in effect, that his chain of command used a "limited use" urinalysis taken while he was in the intensive care unit (ICU) at Martin Army Hospital as a basis for the subject NJP.  He contends that Army Regulation 
600-85, The Army Substance Abuse Program (ASAP) prohibits imposition of NJP based on "limited use" evidence.

3.  The applicant provides, in support of his application, copies of a narrative summary of his hospital treatment for the period 12 to 18 September 2004; doctor's letter, dated 10 November 2004; Chain of Custody log; Patient Laboratory Inquiry; Developmental Counseling, dated 20 September 2004; DA Form 2627 (NJP) dated 30 August 2004; DA Form 2627-2 (Vacation of Suspension), dated 24 September 2004; DA Form 268 (Adverse Action Flag), dated 22 September 2004; and the Army Discharge Review Board determination, dated 3 November 2006.

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.  On 30 July 1984, the applicant enlisted in the United States Army Reserve (USAR).  He was promoted to the rank of staff sergeant, pay grade E-6 on 
31 October 1995.

3.  On 6 May 2004, the applicant was ordered to active duty in support of Operation Enduring Freedom.  He was subsequently assigned to the 29th Infantry Regiment at Fort Benning, Georgia.

4.  On 8 July 2004, the applicant made the following sworn statement: "On 7 July between the hours of 10:30 pm and 11:30 pm I was at a bar restaurant called Scruffy Murphy's in Columbus, Georgia.  I spoke with several civilian persons who offered me two shots of liquor called Yagermiester.  Upon returning to barracks at around 1:00 am I became nervous, had anxiety and was unable to sleep.  I seemed to be very excited.  At around 2:30 am I tried to make contact with MSG O___.  At 5:30 am I informed MSG O____ and commander of my concerns that I had been given without my knowledge some sort of drug."  The statement was signed by the applicant.

5.  On 29 July 2004, the applicant was advised by his company commander of his intent to offer him NJP.  The commander informed the applicant that on 
27 July 2004, he had gone to the Criminal Investigation Division (CID) and confessed that he had lied to the chain of command about the circumstances involving his drug usage.  The commander further advised the applicant that he may be involuntarily separated with a characterization of service as honorable, general under honorable conditions, or under other than honorable conditions.  The applicant indicated that he agreed with the counseling and signed the form.

6.  On 30 August 2004, the applicant accepted NJP for making a false official statement with the intent to deceive. The applicant indicated that he was afforded the opportunity to consult with counsel and elected not to demand trial by court-martial.  The punishment included reduction to pay grade E-5 (suspended), forfeiture of $1404.00 pay per month for 1 month, 45 days of extra duty (suspended), and 45 days of restriction (suspended). The applicant did not appeal the punishment.

7.  On 24 September 2004, the suspensions of punishment of reduction to pay grade E-5, extra duty for 45 days, and restriction for 45 days, imposed on the applicant on 30 August 2004, was vacated.  This vacation was based on the applicant's subsequent use of cocaine  and benzodiaz on or about 12 September 2004.

8.  On 3 November 2004, the applicant's commander informed him of his intention to initiate action to separate him from the military service based on wrongful use of cocaine (twice) and making a false official statement.  The applicant acknowledged receipt and requested consideration of his case by a board of officers.  He desired to appear before this board and elected not to submit a written statement.  He indicated that he had been advised of his right to consult with counsel.

9.  On 6 December 2004, the commander again notified the applicant of his intention to separate him.  The basis in the commander's action was "wrongful use of cocaine."

10.  On 8 December 2004, the applicant indicated that he wanted to waive his right to have a board of officers hear his case. 

11.  On 22 December 2004, the commander again notified the applicant of his intention to separate him for wrongful use of cocaine and for making a false official statement.

12.  On 11 January 2005, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for wrongful use of cocaine and making a false official statement.   The commander stated that the applicant has demonstrated through repeated conduct, after formal counseling, that other disposition would be inappropriate.   Further attempts to rehabilitate him would not be in the best interests of the Army, as it would not produce a quality Soldier.

13.  On 24 January 2005, the applicant consulted with counsel concerning his rights and submitted another election of his rights, wherein, he requested a board of officers to hear his case. 

14.  On 18 January 2005, the Administrative and Civil Law Division, reviewed the administrative separation action and determined that all procedural requirements were met.  The applicant had been informed of his rights and given adequate opportunity to consult with counsel.  The applicant had requested consideration of his case by an administrative separation board.

15.  On 17 February 2005, the appropriate authority approved a waiver of an administrative separation board and approved the separation action.  He directed that the applicant’s service be characterized as under other than honorable conditions.  He further directed that the applicant would not be transferred to the Individual Ready Reserve.  NOTE:  there was no administrative board waiver included in the file subsequent to the applicant's 24 January 2005 request for a board.

16.  Accordingly, on 28 February 2005, the applicant was discharged, in the rank of private, pay grade E-1, under other than honorable conditions.  He had completed 9 months and 25 days of creditable active duty during this period of service.

17.  On 3 November 2006, the Army Discharge Review Board examined the applicant's petition and determined that the characterization of service was too harsh and as result, was inequitable.  The ADRB granted relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  This action entailed a restoration of rank and pay grade to E-5.  The ADRB further determined that the narrative reason for discharge was both proper and equitable. 

18.  The applicant's Certificate of Release or Discharge from Active Duty 
(DD Form 214) was subsequently reissued showing his rank as sergeant, pay grade E-5.  The separation authority of Army Regulation 635-200, paragraph 
14-12c (2), SPD Code of JKK, and Narrative Reason for Separation remained unchanged. 

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c (2) provides for misconduct due to abuse of illegal drugs.   Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

20.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides, in pertinent part, that all personnel information recorded under the authority of this regulation is the property of the United States Government.  Once recorded, it will not be removed except as provided by law or this regulation. Types of authorized military personnel files are the Official Military Personnel File (OMPF), Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), and the Classified Personnel Record (CPR). Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another section of the OMPF unless directed by one or more of the following: (1) The Army Board for Correction of Military Records (ABCMR); (2) The Department of the Army Suitability Evaluation Board (DASEB); (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, Human Resources Command; (5) The OMPF custodian when documents have been improperly filed; (6) Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, Human Resources Command, St. Louis, Missouri ; (8) Chief, Appeals Branch, National Guard Personnel Center.   Documents designated for transfer from the performance or service section of the OMPF will be put on the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted section documents mistakenly filed on the performance or service section to the restricted section.  Unless approved by the Deputy Chief of Staff, Personnel, or by the Human Resources Command Promotions Branch, this action does not justify standby or special selection board consideration. 

21.  Army Regulation 600-85, The Army Substance Abuse Program (ASAP) provides, in pertinent part, that the objective of the "Limited Use Policy" is to facilitate the identification of alcohol and other drug abusers by encouraging identification through self-referral.  In addition, the policy is designed to facilitate the treatment and rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention.  When applied properly, the "Limited Use Policy" does not conflict with the Army's mission or standards of discipline.  It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action.  Unless waived, limited use prohibits the use by the government of protected evidence against a Soldier in actions under the Uniform Code of Military Justice (UCMJ) or on the issue of characterization of service in administrative proceedings.  Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used.  Protected evidence under this policy includes a Soldier's self-referral to the ASAP.  The "Limited Use Policy" does not preclude the initiation of disciplinary action based upon independently derived evidence, including evidence of continued drug abuse after initial entry into the ASAP.  If the command is made aware of a Soldier's illegal drug use through the Soldier's self-referral and admissions, the requirement to initiate separation proceedings pursuant to the appropriate separation regulation will not apply.  The unit commander may initiate separation action; however, the information is protected by the "Limited Use Policy."

22.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JKK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 14, for misconduct due to drug abuse.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his commander was not permitted to use the results of an urinalysis as the basis for imposing NJP on him for misconduct.  He further contends that the SPD Code should be changed on his DD Form 214. 

2.  There is no evidence showing that the commander used any "Limited Use" evidence in connection with the applicant's NJP for making a false official statement.

3.  The evidence in this case suggests that the NJP was properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.

4.  The evidence also suggests that he was afforded due process, in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.

5.  The applicant elected NJP in lieu of demanding trial by court-martial and furthermore, did not appeal the punishment to a higher authority.

6.  The applicant has not provided any substantiating evidence showing that the subject NJP was unjust or that he did not commit the offense for which punished.

7.  The vacation of the suspended portions of his punishment was done as a result of his subsequent misconduct.  The applicant has not provided clear evidence that the vacation was based on limited use evidence.

8.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Furthermore, the ADRB granted relief as a matter of equity based a determination that the characterization was too harsh, resulting in an inequity.  However, the separation package contained results of a command directed urinalysis which was protected by the limited use policy.

9.  The SPD code of JKK was the appropriate code for the applicant based upon his misconduct.  Therefore, it should not be changed.   

10.  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.

11.  In view of the above, the applicant's request should be denied.

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.




      _______ _   _______   ___
               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)                                         AR20080017545





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ABCMR Record of Proceedings (cont)                                         AR20080017545



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