IN THE CASE OF:	  

		BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090007386 


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 an upgrade of his honorable conditions (general) discharge to fully honorable; removal of a bar to reenlistment from his records; and restoration of his past and present rank.  He also requests his medical records be reviewed and his discharge be changed to a medical retirement.

2.  The applicant states, in effect, that he did not ingest any drugs while on active duty, especially cocaine.  He adds that he was sick with Reiter's disease which he contracted in Grenada (which was a combat zone).  His condition worsened in Korea and he was hospitalized for a viral infection and that was the start of his disease.  If the Board were to research this disease on line, it would conclude that Army doctor's misdiagnosed him.  He also adds that the Army kicked him out for no reason and that in 1994/1995, the Army Times published an article stating, that if a Soldier was discharged for a positive urinalysis, that Soldier would be reinstated and if that Soldier was wronged, he would have his rights restored.  He further states that he served for 8 1/2 years and that he loved the Army so much that he would have served 40 years.  He concludes that the Board should consider his case because he had never been in trouble before this "you have officers and senior enlisted hunting down because you're black, that's not the Army, that's bigotry." 

3.  The applicant provides an undated article regarding Reiter's Syndrome in support of his request. 



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 records show he enlisted in the Regular Army (RA) for a period of 4 years on 25 October 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty 31C (Single Channel Radio Operator).  He also executed a 4-year reenlistment in the RA on 2 December 1985.  The highest rank/grade he attained during his military service was sergeant/E-5.  

3.  The applicant’s records also show he served in Germany from on or about 24 October 1980 to on or about 19 October 1982 and Korea from on or about 30 January 1985 to on or about 29 January 1986.  There is no indication in his records that he served in Grenada. 

4.  The applicant’s records further show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), the Army Service Ribbon, the Overseas Service Ribbon, the Good Conduct Medal (3rd Award), the Army Achievement Medal, and the Noncommissioned Officer Professional Development Ribbon.

5.  On 18 September 1987, the applicant was arrested by civil authorities for the civil offense of driving under the influence (DUI) of intoxicating liquor.  He was imprisoned for one day and subsequently appeared before a Magistrate Court in Sierra Vista, AZ, and pleaded guilty to the charge.  He was sentenced to a monetary fine and a suspended operator's permit and was released to his unit.

6.  On 8 October 1987, the applicant received a letter of reprimand for his civilian DUI offense.



7.  On 9 October 1987, the applicant participated in a command urinalysis and his sample tested positive for cocaine.

8.  On 16 October 1987, the applicant accepted nonjudicial (NJP) punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine at some unknown location between 8 August 1987 and 7 September 1987.  His punishment consisted of a reduction to specialist four (SP4)/E-4, a forfeiture $509.00 pay per month for 2 months, and 45 days of extra duty.

9.  On 13 November 1987, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his (the applicant's) misconduct as evidenced by his misuse of alcohol and abuse of drugs.  He further indicated that conduct of this nature brought discredit to the unit and the Army.  The applicant was furnished with a copy of this bar on the same date but elected not to submit a statement in his own behalf.  His battalion commander subsequently approved the bar on 16 November 1987.

10.  On 19 November 1987, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations), for misconduct.  Specifically, the immediate commander cited the applicant’s wrongful use of cocaine and DUI charge. 

11.  On 19 November 1987, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board and personal appearance before an administrative separation board contingent upon him receiving a characterization of service no less favorable than honorable. 

12.  On an unknown date in November 1987, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct-wrongful use of cocaine and remarked that the applicant's conduct had created serious disciplinary problems or hazards to the military mission and himself and that any rehabilitation would not have produced the quality Soldier desired by the Army.  


13.  On an unknown date in 1987, the applicant’s intermediate commander recommended the applicant be eliminated from the Army for misconduct, wrongful use of drugs, with the issuance of an under other than honorable conditions characterization of service.  

14.  On an unknown date in 1987, the applicant’s senior commander also recommended the applicant be eliminated from the Army for misconduct, wrongful use of drugs, with the issuance of an under other than honorable conditions characterization of service.

15.  On 2 December 1987, by memorandum, the applicant requested his conditional waiver for an administrative board be dropped and indicated that he was willing to accept an under honorable conditions (general) discharge. 

16.  On 11 December 1987, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-abuse of illegal drugs, and directed the applicant be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 21 December 1987.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a general discharge and had completed a total of 9 years, 1 month, and 27 days of creditable military service.  This form also shows he received a reenlistment (RE) code of "3."

17.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s  
15-year statute of limitations.

18.  The applicant medical records are neither available for review with this case nor were they provided by the applicant. 

19.  There is no indication in the applicant's service records that he was issued a permanent physical profile that restricted his duties and/or assignments or that he underwent a medical evaluation board (MEBD) or physical evaluation board (PEB).

20.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

21.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBDs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

23.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

24.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.


25.  Army Regulation 601-280 provides the criteria for bars to reenlistment.  Chapter 8 of this regulation states, in pertinent part, that only Soldiers of high moral character, personal competence, and demonstrated adaptability to the requirements of the professional Soldier's moral code will be reenlisted in the Active Army.  All Soldiers should be evaluated under the "whole person" concept. Soldiers who cannot or do not measure up to such standards, but whose separation under proper administrative procedures is not warranted at the present time, will be barred from further service under this chapter.  The bar to reenlistment is not a punitive action but is designed for use as a rehabilitative tool.  Imposition of a bar to reenlistment does not preclude administrative separation at a later date.  The bar to reenlistment should be initiated prior to a separation or judicial/NJP action because it is intended to put the Soldier on notice that he or she is not a candidate for reenlistment and/or that he or she may be a candidate for separation if the circumstances that led to the bar to reenlistment are not overcome.  Soldiers may be barred from reenlistment for one or a combination of several listed infractions or reasons including causing trouble in the civilian community, involvement in immoral acts, or personal behavior that brings discredit upon his unit or the Army. 

26.  Chapter 8, Army Regulation 601-280 also states in pertinent part that a recommendation to remove a bar to reenlistment will be submitted in writing to the next commander in the chain of command.  Recommendation for removal of a bar to reenlistment will be reviewed and endorsed personally by each commander (or acting commander) in the chain of command.  Any commander in the chain of command who feels removal is not justified may disapprove the recommendation and return it to the initiation commander with no further action required.  An approval to withdraw the certificate will be the same authority who would approve a bar for a soldier with the same years of service or.  When a recommendation for removal of a bar to reenlistment is approved, the remark "Not recommended for further service" on the DA Form 2-1 (Personnel Qualification Record) will be deleted per the applicable regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to fully honorable; his bar to reenlistment should be removed from his records, and his past and present ranks should be restored.  He also contends that his medical records should be reviewed and his discharge should be changed to a medical retirement.



2.  There is no evidence in the applicant's records and the applicant did not provide any substantiating evidence that shows he was allergic to cocaine.  The evidence of record shows the applicant had a history of serious disciplinary problems including one instance of driving while under the influence and one instance of using cocaine.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Contrary to his assertion that he had never been in trouble and that he may have received prejudicial treatment because of his race, he has provided on evidence of such treatment.  The applicant was eliminated under the provisions of paragraph 14-12c of Army Regulation 635-200 due to his misconduct, abuse of illegal drugs.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge.

4.  With respect to his past and present ranks, the evidence of record shows the applicant accepted NJP on 16 October 1987 for wrongfully using cocaine.  His punishment consisted of a reduction to SP4/E-4.  There is no indication that he was promoted to SGT/E-5 subsequent to this reduction and prior to his elimination from the service.  The reduced rank/grade is correctly shown on his DD Form 214.  Additionally, as the applicant is no longer in the Army, he does not have a present rank or grade. 

5.  The available evidence shows that on 13 November 1987 the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his misconduct as evidenced by his misuse of alcohol and abuse of drugs.  The commander further indicated that the applicant’s conduct brought discredit to the unit and the Army.  By regulation, a conduct that brings discredit to the unit and the Army is grounds for a bar to reenlistment.  Additionally, the applicant was furnished a copy of this bar and he was given an opportunity to address his concerns or issues, but he failed to submit a statement in his own behalf.  Again he has failed to provide evidence of a legitimate reason for the removal of this bar from his records.

6.  With respect to a medical discharge, the applicant's medical records are not available for review with this case.  Additionally, there is no evidence in the available records and the applicant did not provide any evidence that shows he was diagnosed with a medical condition that would have warranted his entry into the PDES.  Therefore, he never underwent an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

7.  The purpose of the MEBD is to evaluate the Soldier's medical condition(s) as diagnosed during a medical examination to determine if they do or do not meet the medical retention standards of Army Regulation 40-501, document a Soldier’s medical status and duty limitations, and refer Soldiers to a PEB.  The PEB is established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  There is no evidence that the applicant was unable to perform his duties.  The Army must find that a Soldier is physically unfit to reasonably perform his duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.  

8.  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 failed to submit evidence that would satisfy this requirement.  The applicant has not shown error, injustice, or inequity for the relief he requests.  Therefore, he is not entitled to relief.

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)                                         AR20090007386



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ABCMR Record of Proceedings (cont)                                         AR20090007386



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