IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090012754 


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 the narrative reason shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to a more favorable reason.  

2.  The applicant states, in effect, that he appreciates the Army Discharge Review Board (ADRB) upgrading his discharge to honorable and now requests that his narrative reason for separation be changed.  He states that he became involved with drugs upon his return from Iraq and he was suffering from post-traumatic stress disorder (PTSD) symptoms.  He states that he had an outstanding record, but the stress of the deployment and related family issues to include drug use by his wife clouded his own judgment.  He states he sought help for the PTSD symptoms and he is now in college and a member of two veteran's service organizations.

3.  The applicant provides a personal statement in support of his 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 Regular Army on 11 October 1995.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty 25U (Signal Support Systems Specialist).  He served continuously through reenlistments.  The highest rank/pay grade he attained was sergeant (SGT)/E-5.  

3.  On 17 November 2005, the applicant's unit commander was notified that he had tested positive for cocaine on 9 November 2005.  The DD Form 2624 (Specimen Custody Document-Drug Testing) is stamped with the identification "Army Substance Abuse Program." 

4.  The applicant was counseled accordingly and directed to attend the Substance Abuse Rehabilitation Program (SARP) at Camp Pendleton, CA for a 35-day period of counseling and rehabilitation.   The counseling form also stated that separation action may be initiated under the provisions of Army Regulation 
635-200 for minor disciplinary infractions or a pattern of misconduct and that he could receive an honorable, general, or under other than honorable conditions discharge.  The applicant agreed and authenticated the counseling form.

5.  On 12 December 2005, the applicant underwent a urinalysis drug test while in the Army Substance Abuse Program.  This drug test shows he tested positive for cocaine and that his unit had knowledge of this test and subsequently counseled him.

6.  On 20 January 2006, the applicant was subjected to a unit urinalysis where he was accused of tampering with the specimen.  Test results show he tested positive for cocaine and that the unit submitting the specimen was the Fort Bliss Army Substance Abuse Program.  He was counseled for wrongful use of a controlled substance and for tampering with and willfully destroying a urinalysis sample to evade a positive test.  The counseling form stated he had tested positive on three separate occasions in a 6-month period and that he had just returned from the SARP at Camp Pendleton, CA.  The counselor concluded by stating he recommended the applicant be released from active federal service and that the applicant could be separated under the provisions of Army Regulation 635-200, chapter 14.   

7.  On 31 January 2006, the applicant was ordered to participate in a unit urinalysis test.  The test results show he tested positive for cocaine, a controlled substance.  He was counseled and the Developmental Counseling Form shows separation action would be initiated against him for misuse of illegal drugs under the provisions of paragraph 14-12c, Army Regulation 635-200.

8.  On 2 February 2006, the applicant underwent a medical evaluation for administrative separation.  The evaluator, a medical doctor, diagnosed the applicant with substance abuse use disorders, depression, chronic PTSD, acquired deformity of toe, and nicotine dependence.  In regards to the chapter separation, the medical doctor found the applicant qualified for service and referred him to the mental health clinic for follow-up and evaluation.    

9.  He was counseled on 3 February 2006 for the offense committed on 20 January 2006.  This was his second documented counseling for the same offense committed on 20 January 2006.  He received additional counseling statements that show he was disrespectful towards a superior commissioned officer and communicated a threat towards the officer. 

10.  By memorandum on 8 February 2006, the applicant's commander was notified by the Beaumont Army Medical Center that he was considered a rehabilitative failure and that the applicant had made no commitment to recovery.  The command was cleared to move forward with any administrative actions deemed necessary.

11.  On 10 February 2006, the applicant underwent a mental status evaluation and was found to be mentally responsible for his behavior, that he could distinguish right from wrong, and that he possessed sufficient mental capacity to understand and participate in the proceedings.  The evaluation consisted of clinical interviews and psychometric testing with the following diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV): Axis I Cocaine Abuse and Axis II Personality Disorder (Not Otherwise Specified).  The medical doctor cleared him for any administrative action deemed appropriate by the command to include separation. 

12.  On 15 February 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of cocaine on four separate occasions between 9 November 2005 and 31 January 2006, willfully disobeying a lawful order, and wrongfully communicating a threat towards a superior commissioned officer.  

13.  On 21 February 2006, an acting commander assumed command of Headquarters and Headquarters Battery, 6th Air Defense Artillery Brigade, Fort Bliss, TX, the applicant's unit of assignment.

14.  On 21 February 2006, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 
14-12(c) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for misconduct, commission of a serious offense, and for wrongful use of cocaine on four separate dates.  The identified dates were 9 November 2005, 12 January 2006, 20 January 2006, and 31 January 2006.  The notification letter included two other offenses, which were disobeying a lawful order and communicating a threat to his company commander. 

15.  On 21 February 2006, the applicant acknowledged receipt of the separation memorandum.  He was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  

16.  The applicant waived consulting with counsel, consideration by an administrative separation board, and personal appearance before a board.  He elected not to submit statements on his own behalf. 

17.  On 21 February 2006, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct, commission of a serious offense and directed the applicant be furnished an under honorable conditions discharge.

18.  Accordingly, the applicant was discharged on 27 February 2006.  The DD Form 214 he was issued confirms he had completed a total of 10 years, 4 months and 17 days of active duty service with 6 years, 11 months and 
27 days of foreign service.  Item 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  Item 26 (Separation Code) shows the entry "JKK," and item 28 (Narrative Reason for Separation) shows the entry "Misconduct (Drug Abuse)."

19.  The applicant applied to the ADRB on 4 March 2009 requesting an upgrade of his general discharge to fully honorable.  

20.  The ADRB granted the applicant's request, upgrading his discharge to honorable based on violation of the Limited Use Policy as defined in Army 


Regulation 600-85 (The Army Substance Abuse Program).  Biochemical tests were introduced into the separation packet that were part of the applicant's Army Substance Abuse Treatment Plan, violating the Limited Use Policy.  The use of this information mandated the award of a fully honorable discharge.  The ADRB did not change the reason for discharge for the discharge was for misconduct, abuse of illegal drugs, and fully supported by the applicant's record. 

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  First time drug offenders in the grade of sergeant and above, and all Soldiers with 3 years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense.  All Soldiers must be processed for separation after a second offense in accordance with paragraph 
14-12c(2), abuse of illegal drugs.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant's chain of command referred the applicant to the SARP for rehabilitation after he tested positive for cocaine.  Concurrently, as required by regulation the unit commander initiated separation action under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct, abuse of illegal drugs. 

2.  The ADRB determined that a violation of the Limited Use Policy occurred during the administrative processing of his separation.  Therefore, the ADRB upgraded the applicant's discharge to fully honorable.  The ADRB did not change the applicant's narrative reason for separation for the facts were that the applicant had abused illegal drugs prior to his enrollment in the SARP and then continued to abuse illegal drugs.   

3.  Therefore, based on the evidence of record, there is no justification or reason to change the applicant's narrative reason for separation for his separation was based on misconduct, abuse of illegal drugs. 

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.  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)                                         AR20090012754



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ABCMR Record of Proceedings (cont)                                         AR20090012754



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