IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090016990 


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 following items on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected:

	a.  item 4a (Grade) from private (PV1) to specialist (SPC),

	b.  item 4b (Rank ) from E-1 to E-4, and

	c.  item 28 (Narrative Reason for Separation) remove "misconduct - abuse of illegal drugs."

2.  The applicant states that there is no record of reduction in his pay grade at the time of his discharge nor is there a record of trial or misuse.

3.  The applicant provides a copy of his DD Form 214 and one page of his DA Form 2-1 (Personnel Qualification Record) in support of this 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 18 August 1982.

3.  Item 18 (Appointments and Reductions) of his DA Form 2-1 shows he was reduced to SPC with a date of rank of 8 February 1988.

4.  Nonjudicial Punishment:

	a.  On 9 February 1988 for failure to go to his appointed place of duty on 31 January 1988.  His punishment included reduction to the grade of SPC/E-4.

	b.  On 26 April 1988 for being absent without leave from 8 to 13 April 1988.  His punishment included reduction to the grade of PV1/E-1.

5.  The applicant received seven DA Forms 4856 (General Counseling Form) from 1 September 1987 through 23 February 1988 for duty performance, being late for duty, missing formation, and separation counseling.

6.  On 1 March 1988 the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
14-12c, with an honorable discharge.  The specific reason for the applicant's recommended elimination was for testing positive for the use of cocaine on 12 January 1988.

7.  On 2 March 1988 the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and he declined to submit statements in his own behalf.

8.  On 6 April 1988 the separation authority approved the separation action and directed that he receive an honorable discharge.

9.  On 2 May 1988 the applicant was honorably discharged.  His DD Form 214 shows the following:

	a.  item 12c (net active service this period) - 5 years, 8 months, and 5 days;

	b.  item 25 (Separation Authority) - the entry "Army Regulation 635-200, paragraph 14-12c";

	c.  item 26 (Separation Code) - the entry "JKK"; and

	d.  item 28 - the entry "misconduct - abuse of illegal drugs."

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - abuse of illegal drugs - as the result of a positive drug test.

2.  Therefore, there is no justification or reason to change the applicant's narrative reason for separation as his separation was based on misconduct - abuse of illegal drugs - or to remove the narrative reason for his separation from his DD Form 214.

3.  The applicant's records show the was reduced by nonjudical punishment to PV1/E-1 effective 26 April 1988.

4.  The applicant's records do not show that he was promoted to or eligible for promotion to SPC/E-4 prior to his separation from active duty on 2 May 1988.  In the absence of evidence to the contrary, it is concluded that the applicant's 
DD Form 214, is correct.  Therefore, his records should not be corrected to show his rank/pay grade as SPC/E-4.

5.  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)                                         AR20090016990



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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