IN THE CASE OF:	  

		BOARD DATE:	  April 14, 2009

		DOCKET NUMBER:  AR20080019067 


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 his general discharge under honorable conditions be upgraded.

2.  The applicant states, in effect, that the nature of his discharge was in error due to the fact that a flawed urinalysis test was used to determine the status of his discharge.  The applicant continues that the urinalysis on which his discharge was based was in error and as a result his life has been turned upside down.

3.  The applicant provides a VA Form 21-4138 (Department of Veterans Affairs - Statement in Support of Claim) and one page of a letter he received from the Department of the Army, Office of the Deputy Chief of Staff for Personnel, Alcohol and Drug Policy Office as documentary evidence in support of this 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 enlisted in the United States Army under the Delayed Entry Program on 5 June 1980 and enlisted in the Regular Army on 10 June 1980.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank he attained while serving on active duty was the rank of private first class (PFC)/pay grade E-3.  However, at the time of separation he held the rank of private (PV2)/pay grade E-2.

3.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), initiated on 3 December 1981, shows the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to report to his appointed place of duty at the prescribed time on four occasions on the same date.  The following punishments were imposed:  reduction to the rank and pay grade PV2/E-2 (suspended, to be automatically remitted if not vacated before 18 January 1982) and forfeiture of $75.00 pay per month for 1 month.

4.  Office of the Provost Marshal, Fort Ord, California, Military Police Blotter, dated 5 January 1982, shows that suspected marijuana and a smoking device containing suspected marijuana were found in the applicant's room during an authorized health and welfare inspection.

5.  A DA Form 2627, dated 5 January 1982, shows the suspension of the applicant's punishment of reduction to the rank and grade of PV2/E-2, imposed on 4 December 1981, was vacated.

6.  A DA Form 2496 (Disposition Form), dated 12 February 1982, shows the applicant's chain of command was informed that his urinalysis test on 5 January 1982 had resulted in a positive reading for use of cannibinoids (marijuana).

7.  A DA Form 2627, dated 12 February 1982, and a DA Form 2496, dated       21 June 1982, show the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for the wrongful use of marijuana.  The following punishments were imposed:  reduction to the rank and pay grade PVT/E-1 (suspended), forfeiture of $144.00 pay per month for 1 month, and         7 days of extra duty.


8.  A DA Form 4187 (Personnel Action), dated 22 February 1982, shows the applicant's unit commander imposed a flagging action to block his advancement to the rank and pay grade PFC/E-3.  The commander indicated that the applicant's duty performance had been such as not to warrant consideration for advancement at that time.

9.  A DA Form 2627, undated, shows the applicant's unit commander considered punishing him under the provisions of Article 15 of the UCMJ for possessing a DD Form 2A (United States Armed Forces Identification Card) which had been altered to make it appear as though he was born two years before his actual date of birth.  The commander decided to drop the Article 15 and gave him an adverse counseling.

10.  A Fort Ord Form 1-54 (Record of Informal Counseling), dated 18 June 1982, shows the applicant was counseled by a noncommissioned officer (NCO) regarding his attitude.  The applicant was counseled about his attitude toward his work and military.  The NCO stated he had noticed that the applicant had chosen to look against the Army way of maintaining control of its subordinates, and he stated that the applicant was no longer an asset to his section.  Therefore, the NCO had considered recommending that the applicant be administratively separated under the provisions of Chapter 5 (Separation for Convenience of the Government) of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant authenticated the document with his signature, but did not provide a written response on the form.

11.  On 18 June 1982, the applicant’s unit commander notified him, in effect, that he was initiating action under the provisions of paragraph 5-31 (Expeditious Discharge Program) of Army Regulation 635-200 to release him from active duty for transfer to the Individual Ready Reserve to complete his statutory or contractual service obligation, if any, or discharge him from the United States Army.  The unit commander informed the applicant that he was recommending that the applicant receive a characterization of service of "under honorable conditions."  The commander also informed the applicant that the basis for his proposed action was that he lacked the necessary desire and attitude to make the military a career.  The commander also noted that the applicant had been counseled on several occasions and none of those efforts were met with any positive results.  The unit commander informed the applicant that the separation authority was not bound by his recommendation as to the characterization of service.  The unit commander informed the applicant that his proposed separation could result in discharge, release from active duty to a reserve component, or release from custody and control of the Army.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, and to waive these rights in writing.  The unit commander informed the applicant that he would not be permitted to apply for enlistment in the United States Army within two years from the date of his separation.  The commander concluded by informing the applicant that there was no automatic upgrading or review by a government agency of any discharge certificate or character of service which is less than honorable.

12.  On 28 June 1982, the applicant acknowledged receipt of the unit commander's notification and indicated that he was submitting statements in his own behalf.  The applicant acknowledged his understanding that if his service was characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life.  He also acknowledged that he had been provided an opportunity to consult with an officer of the Judge Advocate General's Corps and that he further understood that there was no automatic upgrading or review by a government agency of any discharge certificate or character of service which is under honorable conditions.  The applicant indicated his understanding that he would not be permitted to apply for enlistment in the United States Army within two years from the date of his separation and that he may be transferred to the Individual Ready Reserve to complete his statutory or contractual service obligation.

13.  The separation authority directed the applicant's separation under the provisions of paragraph 5-31 of Army Regulation 635-200 for failure to meet acceptable standards required of enlisted personnel in the Army.  The separation authority directed that the applicant be discharged from the military service and issued a General Discharge Certificate.  He cited the applicant's negative attitude and total disregard for the Army's rules and regulations as the basis for the issuance of a General Discharge Certificate and concluded that the applicant's elimination would be in the best interest of the command and the United States Army.  The separation authority determined that the applicant had demonstrated a repeated lack of respect for authority and had not been able to adapt to a military environment; therefore, the applicant would be of no use to the Individual Ready Reserve under full mobilization.

14.  On 2 July 1982, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows that he received an "Under Honorable Conditions" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JGH."  Block 28 (Narrative Reason for Separation) shows "Expeditious Discharge Program (EDP) Failure to Meet Acceptable Standards for Retention."

15.  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.

16.  The applicant provides one page of a letter he received from the Alcohol and Drug Policy Office of the Department of the Army, Office of the Deputy Chief of Staff for Personnel, dated 30 November 1983.  The Alcohol and Drug Policy Office, informed the applicant that as a result of reported testing errors made by two specific laboratories during the period November 1981 to July 1982, the Department of the Army had screened his military records to determine if a positive urinalysis result tested by either laboratory during this period was the basis of any action taken against him or in otherwise reflected in his official military records.  The Alcohol and Drug Policy Office informed the applicant that the records screen in his case was negative.  However, they informed him that if he disagreed with the determination because he believed an action was taken against him based upon a positive urinalysis result tested during the above period, he could petition the ABCMR to seek a correction of that error or injustice.

17.  The applicant provides a VA Form 21-4138 (Department of Veterans Affairs - Statement in Support of Claim), dated 30 October 2008, which shows that in connection with a claim for benefits from the Department of Veterans Affairs, he submitted the following statement:  "I am submitting a claim for discharge upgrade due to flawed urinalysis testing while I served in the US [United States] Army.  This error cause me heartship [hardship] and loss of deserved veterans' benefits.  I am requesting that my discharge read honorable discharge.  I include a copy of the letter from the Army confirming the error was on their part."

18.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Paragraph 5-31 of Chapter 5 of this regulation, in effect at the time, provided for separation under the Expeditious Discharge Program.  This program provided that members who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  Soldiers separated under this provision were to be released from active duty and transferred to the Individual Ready Reserve to complete their service obligation, except those whom the separation authority determined, for some specific reason, had no potential for useful service under conditions of full mobilization.  Service of Soldiers separated under the Expeditious Discharge Program could be characterized as honorable or under honorable conditions as appropriate.
19.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general discharge under honorable conditions should be upgraded was carefully considered and determined to lack merit.

2.  The applicant contends that his discharge was based upon the erroneous results of a faulty urinalysis test.  Although the applicant received a letter from the Alcohol and Drug Policy Office which informed him that reported testing errors had been made by two specific laboratories during the period November 1981 to July 1982, the letter also informed him that the records screen in his particular case was negative.

3.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

4.  Although the applicant's record shows he received punishment under the provisions of Article 15 of the UCMJ for wrongful use of marijuana, evidence shows that neither the applicant's unit commander nor the separation authority specifically mentioned his positive urinalysis as the catalyst for his discharge.  In fact, they stated that the applicant's separation was based upon his poor attitude, repeated disciplinary infractions, total disregard for Army policies, demonstrated and repeated lack of respect for authority which resulted in his inability to adapt to a military environment.

5.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge.

7.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment, employment benefits, or veteran's benefits.  Additionally, in order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting his request.

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)                                         AR20080019067



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ABCMR Record of Proceedings (cont)                                         AR20080019067



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