IN THE CASE OF:	  

		BOARD DATE:	  3 June 2010

	DOCKET NUMBER:  AR20090020940 


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 removal of the word "Misconduct" from his DD Form 214 (Certificate of Release or Discharge from Active Duty) and the DA Form 4126-R (Bar to Reenlistment Certificate) from his records.

2.  The applicant states that the facts and circumstances that led to his discharge were unconstitutional.  Prior to his separation for misconduct, he had an
Article 15 hearing on this matter and all the charges were dropped.  Thus, his separation for misconduct violated Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraphs 14-12c and 1-19b.  He also states that he was provided with no medical treatment while awaiting his separation and that others conspired against him which resulted in an unfair treatment.  He further states that when the Army Discharge Review Board (ADRB) rendered a decision on 9 November 2005 he was unaware that he needed to provide proof of the circumstances that led to his discharge.

3.  The applicant provides the following documents:

* A self-authored statement, dated 14 November 2009
* A statement from his dentist, dated 3 November 2009
* A copy of his separation proceedings, dated 4 October 1990
* A copy of his separation packet, dated 14 May 1990
* A copy of his DA Form 4126-R, dated 11 May 1990
* A copy of his Standard Form (SF) 88 (Report of Medical Examination), dated 29 May 1990
* Copies of various chronological records of medical care and dental records throughout his military service
* A copy of his former commander's DA Form 67-8 (U.S. Army Officer Evaluation Report [OER])

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.  Having had prior service in the Army National Guard (ARNG), the applicant's records show he enlisted in the Regular Army (RA) on 27 September 1978 and he was initially trained in and held military occupational specialty (MOS) 36K (Lineman).  He subsequently executed a series of extensions and/or reenlistments and he was awarded MOS 71L (Administrative Specialist).

3.  He served in various staff positions, within and outside the continental United States, including a 17-month tour in Berlin and a 25-month tour in Germany.  He was promoted through the ranks to sergeant (SGT)/E-5.

4.  On 8 April 1988, he was evaluated by the Berlin Brigade MOS/Medical Retention Board (MMRB) that evaluated his ability to perform the physical requirements of his MOS.  Based on a thorough review of his most recent medical profile and all other pertinent medical records and reports, the MMRB determined that his medical condition did not preclude satisfactory performance of his MOS in a worldwide environment.  Accordingly, the MMRB determined he would be retained in his current MOS.

5.  In August 1989, he was reassigned to the U.S. Army Element (USAE), U.S. Central Command (USCENTCOM), MacDill Air Force Base (AFB), FL.

6.  On 11 April 1990, he participated in a random unit urinalysis and his urine sample tested positive for marijuana.

7.  On 11 May 1990, his immediate commander initiated a bar to reenlistment against him citing his serious misconduct.  On 18 May 1990, the applicant was provided with a copy of this bar action and he elected to submit a statement in his own behalf.  However, on 25 May 1990, he stated on the DA Form 4126-R that having been given the opportunity to submit a statement he changed his mind.

8.  On 25 May 1990, after reviewing the commander's recommendation and Soldier's review, the Commanding General (CG), USAE, USCENTCOM, approved the DA Form 4126-R.

9.  On 29 May 1990, the applicant was advised that the DA Form 4126-R was approved.  He was also advised of his right to appeal the imposition of his bar.  He elected to appeal the bar to reenlistment.

10.  On 4 June 1990, by memorandum, he appealed his bar to reenlistment.  He stated that the drug incident had affected his military career.  He had not previously received any negative counseling, nonjudicial punishment, or a bad evaluation.  He further asked for the opportunity to continue his military service.

11.  On an unknown date in 1990, after a careful consideration of his appeal, the CG, USAE, USCENTCOM, denied it.

12.  On 24 July 1990, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation
635-200, chapter 14, for misconduct, citing his positive test on the command-directed urinalysis and his bar to reenlistment.  The immediate commander further ordered him to undergo a complete medical examination and that arrangements had been made for him to report to "a physical examination at 0700 hours on 29 May 1990."

13.  On 24 July 1990, he acknowledged receipt of the separation memorandum, he consulted with legal counsel, and 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.  He requested consideration of his case by an administrative separation board and appearance before such a board.

14.  On 24 July 1990, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, by reason of testing positive on the command-directed urinalysis.

15.  On 4 October 1990, an administrative separation board convened at MacDill AFB to determine whether he should be separated from the Army by reason of misconduct.  The board recommended his discharge from the Army with a general discharge.  The board also recommended he be given a probationary period to demonstrate successful rehabilitation and continuing satisfactory military service.

16.  On 19 November 1990, the separation authority disapproved that part of the board’s recommendation that would have suspended the discharge for 6 months and approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, by reason of misconduct - abuse of illegal drugs.  He also directed the applicant be discharged immediately and issued a General Discharge Certificate.  On 30 November 1990, the applicant was discharged accordingly.

17.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, with a character of service of "under honorable conditions (general)."  This form shows he completed a total of 12 years, 3 months, and 19 days of creditable active service.  Item 26 (Separation Code) shows the entry "JKQ" and item 28 (Narrative Reason for Separation) shows the entry "Misconduct - Commission of a Serious Offense."

18.  On 16 July 2004, the applicant petitioned the ADRB for an upgrade of his discharge.  On 9 November 2005, the ADRB conducted a records review, including supporting documentation submitted by the applicant.  On
14 December 2005, the ADRB notified him that he was granted relief in the form of an upgrade of the characterization of his service to fully honorable and correction of the narrative reason of his separation to "Misconduct."  The board determined that the characterization of service was too harsh and the narrative reason for separation was inequitable based upon current regulations.  However, except for the modification the ADRB also determined the applicant’s reason for separation was both proper and equitable.  The applicant was subsequently reissued a DD Form 214 that shows an honorable characterization of service and narrative reason for separation as "Misconduct."

19.  He submitted the following documents:

	a.  A self-authored statement, dated 14 November 2009, wherein he states that his separation violated Title 37, U.S. Code, section 502(b) (Absences due to sickness, wounds, and certain other causes); Title 38 (Veterans' Benefits); and Department of Defense Instructions (DODI) 1332.38 (Physical Disability Evaluation) and 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities).  His separation proceedings were based on the same action that was disposed of by nonjudicial proceedings (NJP) where the commander determined there was insufficient evidence to administer NJP.  He also argues that in the case of abuse of illegal drugs, serious misconduct separation action will normally be based on the commission of a serious offense.  He further argues that he was not allowed to make any medical appointments or follow up during his separation proceedings.  He also raises 14 questions wherein he questions the whereabouts of certain individuals such as his former commander and former first sergeant, the disposition of his urine specimen, the role of certain individuals in the separation process, the fact that he objected to the discharge, and if members of his administrative separation board knew that one of the officers involved had been previously relieved.

	b.  A statement, dated 3 November 2007, from his dentist wherein she states that he has multiple decayed teeth, some of which can still be saved.

	c.  Copies of his separation physical, dental records, and selected chronological records of medical care.

	d.  A copy of his former commander's OER for the period 12 January 1990 through 24 July 1990 that shows he was relieved for cause during this period. 

20.  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. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

21.  Army Regulation 601-280 (Army Retention Program), in effect at the time, prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service.  Imposition of a bar to reenlistment does not preclude administrative separation at a later date.  The bar to reenlistment is intended to put the Soldier on notice that he/she is not a candidate for reenlistment and he/she may be a candidate for separation if the circumstances that led to the bar to reenlistment are not overcome.  Examples of rationale for reenlistment disqualification include, but are not limited to, AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion progression, causes trouble in the civilian community, involved in immoral acts, personal behavior brings discredit upon his unit or the Army, no demonstrated potential for future service, and substandard performance of duties.

22.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the Official Military Personnel File (OMPF), Military Personnel Records Jacket (MPRJ), Career Management Individual Files (CMIF), and Army Personnel Qualification Records (PQR).  Paragraph 6-1 states that the DA Form 4126–R, the approving authority’s review, and any later review are filed in the Soldier's MPRJ.  Once the form is voided, remove and destroy form and all documents together with the approved instrument of removal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the "Misconduct" should be removed from his DD Form 214 and the Bar to Reenlistment Certificate should be removed from his records.

2.  The evidence of record shows the applicant, a noncommissioned officer and a leader of Soldiers, tested positive during a command-directed urinalysis.  His commander determined his continued active duty was no longer in the best interest of the Army and, accordingly, he initiated a Bar to Reenlistment Certificate against him.  The applicant initially indicated he desired to submit a statement in his own behalf; however, he later changed his mind.  After reviewing the commander's recommendation and the applicant's acknowledgement, the approval authority ultimately approved the bar to reenlistment.  The applicant subsequently submitted an appeal to the approved bar to reenlistment, which was denied.  This bar is correctly filed in his MPRJ as required by applicable regulation.  There is neither an error nor an injustice.

3.  The evidence of record shows he was charged with an act of misconduct and he was notified of the initiation of separation action.  He acknowledged receipt of the notification and requested an administrative separation board.  Accordingly, a board convened and recommended to the approving authority that the applicant be discharged from the Army with a character of service of general, under honorable conditions with a suspension of separation for 6 months.  The separation authority disapproved the suspension and directed immediate discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  His narrative reason for separation was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c due to misconduct - abuse of illegal drugs.  Absent the misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his misconduct.  At the time, the only valid narrative reason for separation permitted under that paragraph was "Misconduct - Abuse of Illegal Drugs."

5.  However, as a matter of equity, the ADRB changed his discharge to honorable and his narrative reason for separation to "Misconduct."  The ADRB also considered the applicant’s reason for separation and determined it was both proper and equitable.  Aside from his dissatisfaction with the outcome of the ADRB's decision, he has provided no evidence that shows his misconduct did not occur.  Again, there is neither an error nor an injustice.

6.  With respect to the argument and questions he raises in his self-authored statement:

	a.  He argues that his separation was unconstitutional but he does not state what specific constitutional right was violated or how his separation was in conflict with the constitution.  

	b.  He argues that his separation violated DODI 1332.38 and 1332.39; however, he does not specifically state what violations occurred.  He was neither pending separation/retirement under the physical disability evaluation system (PDES) nor was he entitled to enter the PDES (he did not have a medical condition that was determined to be unfitting by the Army.

	c.  He argues that his separation violated Title 37 and Title 38 of the U.S. Code, but fails to mention how his separation violated those statutes.  In addition, veterans benefits are determined by the Department of Veterans Affairs and are not within the purview of this Board.

	d.  He inquires about the whereabouts of certain individuals who were involved in his separation processing; however, the ABCMR is not an investigative agency.

	e.  Most importantly, the applicant has failed to provide any specific proof or evidence of error or injustice in his case.  The ABCMR operates pursuant to law under Title 10, U.S. Code, section 1552, to direct or recommend correction of military records to remove an error or injustice based on evidence of record.  It is not a vehicle for dispensing unearned or unjustified benefits or record corrections.

7.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, he must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He failed to submit evidence that would satisfy this requirement; therefore, he is not entitled to the requested 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)                                         AR20090020940



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ABCMR Record of Proceedings (cont)                                         AR20090020940



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