BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100011877 


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, in effect, the reason for his discharge be deleted from his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states he was discharged on 12 September 1976 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 16, based on a false positive urinalysis identifying him as a drug user.  As such, incriminating data has served to hamper his employment opportunities even though he has made every effort to better himself academically.

3.  The applicant provides a self-authored statement, dated 8 April 2010.

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 31 May 1975.  He completed the required training and he was awarded military occupational specialty 12B (combat engineer).  The highest rank/grade he held was private first class (PFC)/E-3.

3.  The applicant's record contains a document, Subject: Commander's Declaration of Re-hab Failure, dated 5 August 1976, that states on 8 July 1976 the applicant was referred to the Fulda Community Drug/Alcohol Assistance Center (CDAAC) because of a triple positive urinalysis.  The memorandum indicated he was using Pheno-Barbitol, Amphetamines, and Morphine.  The document also states he was relieved from guard duty because he was caught in possession of Marijuana and was apprehended on 4 August 1976.  As a result the applicant was declared a rehabilitation failure.

4.  The applicant's record contains an Alcohol and Drug Abuse Prevention and Control Program Progress (ADAPCP) Report, dated 6 August 1976, which states the applicant:

* was mandatorily referred to the ADAPCP on 11 June 1976 for multiple drug abuse
* started the rehabilitation program on 8 July 1976
* has not shown a desire for rehabilitation
* was declared a rehabilitation failure

5.  The applicant's record contains an undated 20th Medical Detachment memorandum, Subject: Report of Mental Status Evaluation, that states the applicant was evaluated for separation under the provisions of Army Regulation 635-200.  The examiner determined the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He further determined that further rehabilitative efforts were not likely to be effective.

6.  On 24 August 1976, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-200, chapter 16, for the following reasons:

* A triple positive on 1 June 1976
* Apprehension for possession of marijuana on 8 July 1976 while on guard duty
* Apprehension for possession of marijuana on 4 August 1976

7.  On the same date, the applicant acknowledged receipt of the notice for his proposed discharge, he requested his right to consult with military legal counsel, he did not desire to make statements in his own behalf, and he understood that if discharged he would receive an honorable discharge.

8.  The applicant's commander subsequently recommended the applicant for discharge under the provisions of Army Regulation 635-200, chapter 16, for alcohol or other drug abuse.

9.  On 25 August 1976, the intermediate commander concurred with the company commander's recommendation.  He recommended approval with an honorable discharge.

10.  On 31 August 1976, the appropriate separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200 for drug abuse.  The separation authority directed the applicant would be issued an Honorable Discharge Certificate, a separation program designator (SPD) code of "JKK," and a reentry (RE) code of "3."

11.  On 10 September 1976, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 16.  He completed 1 year,
3 months, and 10 days of active service.

12.  Item 9c (Authority and Reason) of the applicant's DD Form 214 contains the entry "AR 635-200, CHAP 16, SPD JPB."  Item 10 (Reenlistment Code) shows the entry RE-3.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 at the time contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to the ADAPCP may be separated because of his/her inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  At the time of the applicant's separation an honorable or general discharge was authorized.

   b.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  This regulation shows that the SPD code of "JPB" as shown on the applicant's DD Form 214 specified the narrative reason for separation as "drug abuse" and that the authority for separation under this SPD was "Army Regulation 635-200, chapter 16."

	c.  Army Regulation 635-5-1 also shows that the SPD code of "JKK" specified the narrative reason for separation as "misconduct - alcohol or other drug" and that the authority for separation under this SPD was "Army Regulation 635-200,  chapter 14, paragraph 14-33a(2).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the reason for his discharge should be deleted from his DD Form 214 because it is in error.  However, he did not submit any evidence to refute the reason for his discharge.

2.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  Although the separation authority's 31 August 1976 endorsement indicated the applicant would be issued an SPD code of "JKK" this code was incorrectly stated since the applicant was discharged under chapter 16, not chapter 14, of Army Regulation 635-200.  Therefore, the SPD code of "JPB" on his DD Form 214 is correct based on the authority and reason for his separation.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100011877



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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