BOARD DATE:	  	28 January 2010

		DOCKET NUMBER:  AR20090015185 


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 his reason and authority for discharge be changed.

2.  The applicant states that in accordance with "November 27, 1979, Civil Action Number  77-0904, Giles versus Secretary of the Army, an Army service member is entitled to an honorable discharge if discharged before January 1, 1975, based on evidence compelled in urinalysis for the purpose of identifying drug abusers."

3.  The applicant provides no additional documentation.

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.  On 13 October 1972, the applicant enlisted in the Regular Army in Chicago, Illinois, for 3 years in the pay grade of E-1.  He successfully completed his training as a medical corpsman.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 23 January 1973 and 2 February 1973 for failure to go to his appointed place of duty.  His punishments consisted of forfeitures of pay, restriction, and extra duty.

4.  The applicant was promoted to the pay grade of E-3 on 13 February 1973.

5.  On 21 February 1973 and 11 May 1973 the applicant had NJP imposed against him for five incidents of failure to go to his appointed place of duty.  His punishments consisted of a reduction in pay grade (suspended for 60 days), a forfeiture of pay, restriction, and extra duty.

6.  The applicant was convicted by a special court-martial on 18 July 1973 of being absent without leave (AWOL) from 14 June 1973 until 19 June 1973.  He was sentenced to confinement at hard labor, a reduction in pay grade, and a forfeiture of pay.

7.  On 12 October 1973, the applicant had NJP imposed against him for failure to go to his appointed place of duty.  His sentence consisted of a forfeiture of pay and extra duty.

8.  The facts and circumstances pertaining to the applicant's discharge are not on file.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged on 5 February 1974 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, paragraph 13-5a, for unfitness due to drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana.  He had completed 1 year, 3 months, and 23 days of total active service and he had approximately 70 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

9.  The available records do not show that the applicant ever applied to the Army Discharge Review Board for a change of his reason and authority for discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time contained the policy and outlined the procedures for separating individuals for unfitness or unsuitability.  Paragraph 13-5 provided, in pertinent part, that an individual was subject to separation under the provisions of this chapter for unfitness for drug dependence or the unauthorized use, sale, possession or transfer of any controlled substance as defined in Army Regulation 600-50 (Standards of Conduct for Department of the Army Personnel) or the introduction of such a controlled substance onto any Army installation or other government property under Army jurisdiction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his reason and authority for discharge should be changed due to "Civil Action Number  77-0904, Giles versus Secretary of the Army," whereby an Army service member is entitled to an honorable discharge if discharged before 1 January 1975 was based on evidence compelled in urinalysis for the purpose of identifying drug abusers.

2.  His contentions have been noted.  However, there is no evidence in the available records nor has the applicant submitted any evidence that shows that the case to which he refers is in any way similar to the circumstances surrounding his case.

3.  As previously stated, the facts and circumstances surrounding the applicant's discharge are not on file.  The available records do show that he was discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a, for unfitness due to drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090015185



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ABCMR Record of Proceedings (cont)                                         AR20090015185



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