BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090006023 


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 reinstated in the U.S. Army Reserve (USAR) or, in the alternative, that his discharge be upgraded.

2.  The applicant states, in effect, that when he had a positive urinalysis, he was told he had to go to a drug rehabilitation program that he had to pay for himself.   At that time he was making $6.50 an hour and could not afford the $350.00 for the class until he had a better paying job.  When he finally got a better paying job (paying $13.10 an hour) he enrolled in a drug rehabilitation class and completed the class.

3.  The applicant adds that his unit, his civilian employer, and his recruiter can vouch for him.  He wants to join his friends in Iraq and Afghanistan and will sign and do anything to be given a second chance to prove himself.

4.  The applicant provides excerpts from his military records.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the USAR on 10 June 2005, he was awarded military occupational specialty (MOS) 88M (motor transport operator), and was advanced to the rank/grade of private first class (PFC)/E-3.

2.  On 3 June 2006, the applicant was formally counseled by his commander for testing positive on a command directed urinalysis.  His commander stated while 
the use of illegal drugs was wrong, the applicant's actions of coming forward and talking to his leaders about his drug use was honorable.  His commander stated in the counseling session that the applicant would stay assigned to the unit and his continued retention in the USAR would be based on the applicant's successful completion of a substance abuse rehabilitation program.

3.  On 16 June 2006, Headquarters, 88th Regional Readiness Command, Fort Snelling, MN, Orders 06-167-00059, administratively reduced the applicant from PFC/E-3 to private (PV1)/E-1.  On the same date, Orders 06-167-00061, same headquarters, discharged the applicant with an under other than honorable conditions discharge.  USAR orders do not show, by narrative or code, the reason for a discharge.

4.  On 15 September 2006, the applicant completed a 10-session drug and alcohol prevention program and he was issued a completion certificate.

5.  On 5 March 2008, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.  The ADRB denied the request based on a presumption of regularity since there were no records to show what occurred in the applicant's case.

6.  Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations), chapter 11 (Substance Abuse Rehabilitation Failure), paragraph 11–1, states that initiation of discharge proceedings is required in the case of a Soldier who has been referred to a program of rehabilitation for personal substance abuse under the provisions of Army Regulation 600-85 (The Army Substance Abuse Program) and who fails through inability or refusal to participate in, cooperate in, or successfully complete the program in the following circumstances:

   (1)  There is a lack of potential for continued military service; or

   (2)  Long-term rehabilitation in a civilian medical facility is determined necessary.
   
7.  Soldier may be discharged when the commander, in consultation with an Army Substance Abuse Program official, determines that further rehabilitation efforts are not practical, rendering the Soldier a rehabilitation failure, and discharge is in the best interest of the Army.  When a Soldier is discharged under this chapter, characterization of service as honorable or general, under honorable conditions is authorized except when service is uncharacterized for Soldiers in entry level status.

8.  Army Regulation 135-178, paragraph 12–1 (Misconduct), states that abuse of illegal drugs is serious misconduct.  Discharge action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more disciplinary infractions or incidents of other misconduct and
processed for discharge.  An under other than honorable conditions discharge is authorized when discharge is ordered under these provisions.  Paragraph 12–9, (Procedures), states that the Administrative Board Procedure will be used, except under b below… b. The use of the notification procedure is authorized provided characterization of service under other than honorable conditions is unwarranted.

9.  Army Regulation 135-178, paragraph 3–10 (Notice Under the Administrative Board Procedure), states that when the Administrative Board Procedure is required under a reason for separation cited in this regulation, the Soldier will be notified in writing of the matters set forth in this section: 

   (1)  The basis of the proposed separation, including the circumstances upon which the action is based, and a reference to the applicable provisions of this regulation;
   
   (2)  Whether the proposed separation could result in a discharge from the Army, transfer from the Army National Guard of the United States (ARNGUS) to the USAR, or release from custody and control of the Army;
   
   (3)  The least favorable characterization or description of service authorized for the proposed separation;
   
   (4)  The Soldier’s right to consult with counsel.  The Soldier may also consult with civilian counsel retained at the Soldier’s own expense;

   (5)  The right to obtain copies of documents that will be sent to the Separation Authority supporting the basis of the proposed separation.  Classified documents may be summarized.  For separation under chapter 11 or chapter 12 based on a positive urinalysis, the Soldier will be provided, on request, a copy of the laboratory documents;
   
   (6)  The Soldier’s right to request a hearing before an Administrative Board;

   (7)  The Soldier’s right to present written statements instead of board proceedings;
   
   (8)  The Soldier’s right to representation at the Administrative Board by military counsel designated in accordance with Army Regulation 27-10 (Military Justice), chapter 6.  Request for military counsel of choice is not authorized;
   
   (9)  The Soldier’s right to representation at the Administrative Board by civilian counsel at the Soldier’s own expense;

   (10)  Nonlawyer counsel may not represent a Soldier before an Administrative Board unless:
   
   (a)  The Soldier expressly declines appointment of counsel qualified under Article 27(b)(1) of the UCMJ and requests a specific nonlawyer counsel; or
   
   (b) The Separation Authority assigns nonlawyer counsel as assistant counsel;
   
   (11)  The Soldier’s right to submit a conditional waiver of the right to a hearing before an administrative board;

   (12)  Unless prohibited by paragraph 3-15c, the right to waive the rights in paragraphs (4) through (10) above, in writing after being afforded a reasonable opportunity to consult with counsel, and that failure to respond within 30 calendar days from the date of receipt of the notification memorandum will constitute a waiver of the right; and 

   (13)  The right to be present at the board hearing will be waived if the Soldier fails to appear without good cause.
   
10.  Reasonable effort should be made to furnish copies of the notification memorandum to the Soldier through personal contact by a representative of the command.  In such a case, a written acknowledgment of receipt of the notification will be obtained.  If the Soldier cannot be contacted or refuses to acknowledge receipt of the notification, the notification memorandum will be sent by registered or certified mail, return receipt requested, to the most recent address furnished by the Soldier as an address for receipt or forwarding of official mail.  The individual who mails the notification will prepare an Affidavit of Service by Mail. This will be inserted in the Soldier’s personnel file together with PS Form 3800 (United States Postal Service - Certified Mail Receipt).





DISCUSSION AND CONCLUSIONS:

1.  It is evident that the applicant had a positive urinalysis for a controlled substance and, based on the characterization of his service, that he was separated due to misconduct - drug abuse.

2.  While the ABCMR, like the ADRB, starts its review of cases with a presumption of regularity, the following timeline must be considered:

	a.  On 3 June 2006, the applicant was counseled by his commander for testing positive on a command directed urinalysis.  At that time his commander stated that the applicant would stay assigned to the unit and his continued retention in the USAR would be based on the applicant's successful completion of a substance abuse program;

   b.  On 16 June 2006, the applicant was reduced in grade and he was discharged under other than honorable conditions; and

   c.  On 15 September 2006, the applicant completed a 10-session drug and alcohol prevention program and he was issued a completion certificate.

3.  Based on the short time between the date the applicant was told he was to be retained and the date of his discharge, it would appear that he was never notified that he was being considered for discharge or given the rights inherent in a discharge which could result in a discharge under other than honorable conditions, which include the right to a board of officers.  As such, the preponderance of evidence shows that the presumption of regularity cannot be applied in this case since all indications are that the applicant's rights were violated in the discharge process.

4.  In addition, the 13 days between counseling and discharge makes it abundantly clear that the applicant was not given the opportunity to enroll in a substance abuse rehabilitation program as offered by his commander.  

5.  Based on the fact that the preponderance of evidence shows that the applicant was not provided the rights required when being processed for a discharge for misconduct; the fact that he was not given the opportunity to enroll in a substance abuse rehabilitation program; and the fact that he did, in fact, enroll and complete such a program; the unmistakable conclusion must be made that an error and injustice occurred in this case.


6.  As for the nature of the relief to recommend, since it would appear that the applicant was discharged without being given due process, it would be equitable to void his discharge and reduction, and to restore him to his former status in the USAR.  Because the applicant is being reinstated, it would also be fair and equitable to credit him with 50 retirement points a year during the time he was improperly without military status.

BOARD VOTE:

___x____  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  revoking discharge Orders 06-167-00061, dated 16 June 2006;

   b.  revoking reduction Orders 06-167-00059;
   
	c.  showing that he continued to serve in his troop program unit and earned 50 retirement points a year since 16 June 2006; and

	d.  paying him any back pay and allowances he may be due as a result of these corrections.



      ___________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)                                         AR20090006023



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ABCMR Record of Proceedings (cont)                                         AR20090006023



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