DOCKET NUMBER:  AR20090004080 


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 discharge under honorable conditions from the California Army National Guard (CAARNG) and the Reserve of the Army be voided and that he be reinstated in the Massachusetts Army National Guard (MAARNG).

2.  The applicant states, in effect, that he never joined the CAARNG nor did he ever swear an obligation to the CAARNG.  He states, in effect, that he was transferred to the CAARNG, but he never asked for the transfer.  His request for transfer was a forgery.

3.  The applicant adds, in effect, that the urinalysis toxicological test that was used in the discharge process was falsified by the CAARNG and his discharge has had a direct effect on his employment and has caused him and his family to suffer.

4.  In support of his request, the applicant submitted those documents listed on attachment 1 to his DD Form 149 (Application for Correction of Military Record) as well as a considerable number of other documents which the applicant determined to be related to the issue.

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 evidence of record shows that the applicant served in the Regular Army for the period 19 November 1980 through 10 June 1982.  He was honorably discharged under the provisions of Army Regulation 635-200, chapter 7, section V, for fraudulent entry in the rank and pay grade of private first class, E-3.  (The narrative reason for discharge had been changed by the ABCMR in June 2000.)

3.  The evidence of record shows the applicant applied for a waiver for his enlistment in the MAARNG on 25 October 2001.  The record also shows a waiver for his enlistment in the MAARNG was approved on 1 November 2001.  On 8 November 2001, the applicant enlisted in the MAARNG and as a Reserve of the Army for a period of 4 years, 5 months, and 8 days.

4.  On 23 May 2002, the applicant completed and signed a CAL ARNG 
Form 350-11-R (Recruiting Production Worksheet/Application for Active Duty for Training/Notification of Enlistment).  Item 7 (Unit of Assignment) of this form includes the unit designation, Headquarters and Headquarters Company (HHC), 2nd Battalion, 185th Armor.

5.  The applicant entered his signature in item 25 (Statement of Application) of the CAL ARNG Form 350-11-R.

6.  On the same date, 23 May 2002, an NGB Form 22-5-R-E (Addendum to DD Form 4 - Approval and Acceptance by Service Representative for Interstate Transfer in the Army National Guard) was completed and signed by an enlisting officer, Major G____ S. P____.  This form was provided for review by the Board by the applicant himself.  Although this particular form is not signed by the applicant, he acknowledged to have voluntarily transferred interstate to the CAARNG and agreed to continue his membership in the National Guard of the United States and as a Reserve of the United States Army for the period remaining on his current enlistment with his expiration term of service of 16 April 2006.

7.  In addition to the above two documents, a third form, an NGB Form 22-5-R-E Addendum, with the applicant's name and information was prepared for the applicant's transfer to California from Massachusetts.  The effective date of transfer was to be 23 May 2002.  The applicant's signature, if added to this form, is not visible.  The applicant has rendered most of the information recorded on this form illegible due to his hand-written notations.

8.  On 1 June 2002, information pertinent to the applicant's transfer from the MAARNG to the CAARNG was submitted to the Standard Installation/Division Personnel System.  This form shows the applicant was approved for interstate transfer to HHC, 2nd Battalion, 185th Armor, in California.

9.  On 8 July 2003, Orders 189-3 were published by the MAARNG, Milford, Massachusetts, transferring the applicant from HHC, 1st Battalion, 182nd Infantry (Mechanized), Dorchester, Massachusetts, to HHC, 2nd Battalion, 185th Armor, San Diego, California.  The effective date of the applicant's transfer was 23 May 2002.

10.  The applicant provided an automated DA Form 1379-E (Unit Record of Reserve Training) for the period 16 September 2002 through 6 October 2002.  The record shows that the applicant was absent from all scheduled training on 4, 5, and 6 October 2002.

11.  The applicant provided a DD Form 2624 (Specimen Custody Document - Drug Testing) record showing that urine specimens were collected from individuals assigned to HHC, 2nd Battalion, 185th Armor, including the applicant, on 14 September 2002.  In column G (Results) adjacent to the applicant's name, a hand-written entry was made to show he tested positive for the use of tetrahydrocannabinol (THC).

12.  The signature of the certifying laboratory official, the codes entered in column E (Disc Code), the accession numbers, and the results all appear to have been entered by the same person using the same pen.  The urine specimens were tested at the Tripler Army Medical Center Forensic Toxicology Drug Testing Laboratory, Tripler Army Medical Center, Hawaii.  

13.  On 28 August 2002, Headquarters, CAARNG, Sacramento, California, notified the Commander, HHC, 2nd Battalion, 185th Armor, in a memorandum, subject:  Notification of Positive Drug Test Results for a First Time Drug Offender with less than Three (3) Years Total Military Service, that:

	a.  the applicant had tested positive for the use of an illegal substance;

	b.  detection of the drug in the urine specimen had been confirmed by the Forensic Toxicology Drug Testing Laboratory;

	c.  a DA Form 268 (Report to Suspend Favorable Actions) had been initiated in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags));

	d.  the applicant could challenge the results of the test by submitting evidence of legal use of the drug and the documents would be sent to the State Alcohol Drug Control Officer for evaluation by the State Medical Review Officer; and 

	e.  the applicant could request retesting of the originally submitted specimen.

14.  On an unspecified date in 2003 prior to 2 May 2003, a memorandum was written to the applicant by the Commander, HHC, 2nd Battalion, 185th Armor.  The applicant was advised:

	a.  attendance records of the unit showed he had been absent without permission from scheduled unit inactive duty training;

	b.  that under Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) he was required to attend all scheduled unit training assemblies and annual training periods;

	c.  that unless he had been authorized alternate training, he would have accrued in excess of 12 unexcused absences within the past 12 months;

	d.  if he were declared an unsatisfactory participant, he would receive a general discharge and be transferred to the Individual Ready Reserve;

	e.  with this characterization of his service, he could encounter substantial prejudice in civilian life; and

	f.  he was being ordered to report to attend the next scheduled training assemblies for the unit on 2, 3 and 4 May 2003 with the first formation scheduled for Friday at 0730.

15.  A copy of the applicant's separation packet is not available for the Board's review; however, in a copy of a letter from the CAARNG, Sacramento, California, addressed to the applicant's Member of Congress, it states the applicant requested assistance with being retained in the CAARNG, being assigned to a unit within closer commuting distance, and with investigating the conduct of personnel within his unit.  From this letter it was learned that:

	a.  the applicant's commander had submitted a recommendation for his discharge on 5 November 2002 in accordance with Army Regulations 600-85 (The Army Substance Abuse Program) and 135-178 (Enlisted Administrative Separations) for a positive drug test.  Both the battalion and brigade commanders had endorsed the recommendation.  As earlier indicated, a copy of the separation packet is not available for the Board's review.  The packet was not provided to the Board for review by the applicant and it is not on file in the applicant's interactive Personnel Management System file;

	b.  the applicant had indicated that he was unfairly denied a transfer to another unit closer to his home of record.  At the time, the applicant was flagged in accordance with Army Regulation 600-8-2, paragraph 1-14c, for testing positive on a urinalysis in accordance with Army Regulation 600-85 which prohibited his reassignment; and

	c.  other allegations made by the applicant [related to the non-issuance of military equipment and concerns about anti-Semitic symbols in his unit] were investigated and were found not to have merit.

16.  The applicant was discharged from the CAARNG and the Reserve of the Army in the rank and pay grade of private first class, E-3, on 31 July 2003 under the provisions of section 260, California Military and Veterans Code, and paragraph 8-26e(2)(b), National Guard Regulation 600-200 (Personnel General - Enlisted Personnel Management), for misconduct, first offender, E-4 and below with less than 3 years of service.  On the date of his discharge, the applicant had completed 1 year, 2 months, and 9 days of net active service for retired pay.

17.  On 8 August 2003, Orders 220-1012 were published by the CAARNG, Sacramento, California, discharging the applicant from the Army National Guard and as a Reserve of the Army.  The type of discharge the applicant was to receive was general under honorable conditions.  The authority for the applicant's discharge was paragraph 8-26e(2)(b), National Guard Regulation 600-200, acts or patterns of misconduct, abuse of illegal drugs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge under honorable conditions from the CAARNG and the Reserve of the Army be voided and that he be reinstated in the MAARNG was considered and was found not to have merit.
2.  The applicant stated he never joined the CAARNG nor did he ever swear an obligation to the CAARNG.  The evidence shows that he enlisted in the MAARNG.  The applicant relocated to California and the evidence shows he requested a transfer to the CAARNG.  The applicant states that the transfer was a forgery; however, all documents he submitted to the Board for its consideration show he was an active participant in the process and initiated the action.  The CAL ARNG 
Form 350-11-R the applicant entered his signature on in item 25 does not appear to be a forgery and the signature appears to be similar to the signature shown on the DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) the applicant signed on 8 November 2001 when he enlisted in the MAARNG.

3.  In addition, it appears the applicant sought assistance from a Member of Congress with being retained in the CAARNG and being assigned to a unit within closer commuting distance.

4.  Orders were published by the MAARNG transferring the applicant from the MAARNG to the CAARNG.  The effective date of the applicant's transfer was 23 May 2002.

5.  The evidence shows that on 14 September 2002 a urine specimen was collected from the applicant during a unit administered urinalysis.  The applicant tested positive for the use of THC.  On 28 August 2002, the applicant's unit commander was notified of the test result by the CAARNG Headquarters in Sacramento.

6.  The applicant alleges, in effect, that the urinalysis toxicological test that was used in the discharge process was falsified by the CAARNG.  The applicant provided no evidence to support this allegation.  The signature of the certifying laboratory official, the codes entered in column E, the accession numbers, and the results all appear to have been entered through use of the same pen and by the same person.  The certifying laboratory officer, it should be noted, conducted her testing at the Tripler Army Medical Center Forensic Toxicology Drug Testing Laboratory, Tripler Army Medical Center, Hawaii, and would not have been in a position to have been influenced by the CAARNG.

7.  The evidence indicates that the applicant's commander submitted a recommendation for his discharge on 5 November 2002 in accordance with Army Regulations 600-85 and 135-178 for a positive drug test.  Even though the discharge packet is not available for the Board's review, Government regularity in the discharge process is presumed.  The evidence indicates that both the battalion and brigade commanders endorsed the recommendation for the applicant's separation.
8.  The applicant was discharged from the CAARNG and the Reserve of the Army in the rank and pay grade of private first class, E-3, on 31 July 2003 under the provisions of section 260, California Military and Veterans Code, and paragraph 8-26e(2)(b), National Guard Regulation 600-200, for misconduct, first offender, E-4 and below with less than 3 years of service.

9.  Based on a review of the available documentary evidence, the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

10.  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 has failed to submit evidence that would satisfy this requirement.

11.  In view of the foregoing, there is no basis for granting the applicant's request to have the general under honorable conditions discharge he received while he was a member of the CAARNG and the Reserve of the Army voided and to reinstate him in the MAARNG.

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)                                         AR20090004080



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ABCMR Record of Proceedings (cont)                                         AR20090004080



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