IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100014025 


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, that his discharge be changed to a medical discharge. 

2.  He states he was never notified of a chapter action and was wrongfully discharged under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14.  He adds his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) were not considered.  He further states his current enlistment date, current enlistment term of service, and separation date from active duty were wrong. 

3.  He provides the following:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Memorandum, Subject:  Appearance Before a PEB, with a request for Temporary Duty (TDY) orders and instructions, dated 22 June 2004 
* Army Discharge Review Board (ADRB) Case Report and Directive
* Memorandum, Subject:  Administrative Separation Action [Applicant], dated 25 June 2004
* Memorandum, Subject:  Request for Active Duty Medical Extension (ADME) Status, dated 20 January 2003 (sic) 2004
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders 071-114, dated 12 March 2003

* Orders A-03-402090, dated 9 March 2004
* Orders A-03-402090A01, dated 3 June 2004

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's record shows he enlisted into the Army National Guard (ARNG) on 8 December 1979.

3.  Orders 071-114, dated 12 March 2003, show he was ordered to active duty in support of Operation Enduring Freedom with a report date of 15 March 2003.  

4.  On 16 December 2003, while assigned to the Medical Hold Company, nonjudicial punishment (NJP) was imposed against him for wrongful use of cocaine.  

5.  On 20 January 2004, he requested extension on active duty to receive medical treatment for injury(s), illness or disease incurred while on active duty.

6.  Orders A-03-402090, dated 9 March 2004, show he was scheduled to report to the Medical Hold Company, Fort Gordon, Georgia, for ADME.  His reporting date was listed as 15 March 2004 and the period was listed as 90 days with an ending date of 12 June 2004.  On 3 June 2004, this order was amended to change his period of active duty to 51 days and his ending date to 4 May 2004. 

7.  A complete copy of the chapter 14 packet was not contained in his available files.  However, in a "Memorandum for the Applicant," dated 3 May 2004, he was notified that the commander was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 14-12c(2), commission of a serious offense.  The commander cited the applicant's numerous wrongful use of cocaine as the basis for the separation action.  He instructed him of his rights to: 

* Consult with counsel and/or civilian counsel
* Submit written statements on his behalf
* Hearing before an administrative board
* Appear before an administrative board
* Representation by military counsel 
* Submission of a conditional wavier

8.  The applicant's signature was not contained on the "Acknowledgement of Receipt of Notification" portion of the commander's memorandum.  However, on an unspecified date, the Judge Advocate General (JAG) reviewed his separation packet and found the packet was legally sufficient.  

9.  On 4 May 2004, while assigned to the Medical Hold Company, NJP was imposed against him for wrongful use of cocaine. 

10.  His DD Form 214 is not completely legible and the information listed in item 18 (Remarks) is unreadable.  This form shows the following entries:

* Item 12a (Date Entered AD [Active Duty] This Period) - "2003  06  23"
* Item 12b (Separation Date This Period) - "2004  05  04"
* Item 12c (Net Active Service This Period) - "0001  01  20"
* Item 21 (Signature of Member being Separated) - "Soldier Not Available to Sign"
* Item 24 (Character of Service) - "Honorable"
* Item 25 (Separation Authority) - "Army Regulation 635-200, Chapter 4"
* Item 26 (Separation Code) - "LBK"
* Item 27 (Reentry Code) - "NA"
* Item 28 (Narrative Reason for Separation) - "Completion of Required Active Service"

11.  On 22 June 2004, he was notified that he was scheduled for a formal hearing at the PEB, Fort Sam Houston, Texas, on 30 June 2004.  

12.  Memorandum, Subject:  Administrative Separation Action [Applicant], from the Office of the Adjutant General, South Carolina (SC) SCARNG, Deputy Chief of Staff, Personnel, dated 25 June 2004, stated to take immediate action to initiate the administrative separation of the applicant for misconduct in accordance with Army Regulation 135-178 (Enlisted Administrative Separations) (ARNG and Army Reserve), chapter 12, paragraph 12-1, d(1)b.  He further stated the instruction was supported by documentation of two incidents of Uniform Code of Military Justice (UCMJ) action for illegal drug abuse while on ADME orders.  He continued that orders were terminated effective 4 May 2004, due to UCMJ action by the Fort Gordon Medical Hold company commander.  A copy of his chapter packet is not contained in the available files. 
 
13.  Orders 152-854, discharged him from the ARNG and as a reserve of the Army effective 1 July 2004.  The type of discharge was listed as general and the authority was listed as National Guard Regulation 600-200, paragraph 8-26e(2) and Army Regulation 135-178, paragraph 12-1, d(1)b.  The above memorandum, dated 25 June 2004, was cited as the confirmation.

14.  NGB Form 22 from the SCARNG, shows he was discharged on 1 July 2004 under the provision of NGR 600-200, paragraph 8-26e(2)c, acts or patterns of misconduct with a character of service listed as general.  His total service for pay was listed as 13 years, 10 months, and 15 days with 11 years listed as total service for retired pay.

15.  On 5 March 2005, a DD Form 215 was issued that corrected his 4 May 2004 DD Form 214 as follows:

* Item 24 -  "General"
* Item 25 -  "Army Regulation 635-200, chapter 14"
* Item 26 - "JKQ"

16.  On 16 August 2006, he appealed to the ADRB to upgrade his discharge.  The ADRB noted the applicant's records were void of the complete facts and circumstances concerning the events that led to his discharge from the Army.  However, the board stated his records contained a properly constituted DD Form 214 that identified the reason and characterization for his discharge.  Therefore, the board presumed regularity in the discharge process and denied his request.  The ADRB stated the characterization of service remained both proper and equitable. 

17.  On 8 April 2009, a DD Form 215 was issued that corrected his 4 May 2004 
DD Form 214 as follows:

* Item 12a - "2003  03  15"
* Item 12b - "2004  05  25"
* Item 12c - "0001  03  10"
* Item 24 (Character of Service) - "General"
* Item 25 (Separation Authority) - Army Regulation 635-200, Chapter 14
* Item 26 - "JKQ"



18.  In the processing of this case, an advisory opinion was obtained on 
19 January 2011 from the Chief, Personnel Policy Division, NGB.  An official at NGB recommended the applicant's request be disapproved.  He reiterated the information contained on the applicant's NGB Form 22 issued by the SCARNG.  Additionally, the official stated that the applicant was placed on ADME on 
15 Mach 2004 and the extension was terminated on 4 May 2004 due to UCMJ action.  The applicant received notification of a scheduled appearance before a PEB on 22 June 2004 to be held on 30 June 2004.  However, on 25 June 2004, the SCARNG directed immediate action be taken to separate the Soldier for misconduct documented by two incidents of UCMJ action for illegal drug abuse. The official quoted Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and opined, in effect, that the regulation prohibited the continuation of medical processing based on the reason for his separation.  

19.  The advisory opinion was forwarded to the applicant for his acknowledgement and/or comments.  On 27 January 2011, he responded to the advisory opinion.  He said stress and depression were the reasons for his actions of misconduct and that is why he was assigned to medical hold.  He added that he also suffers with emotional problems.

20.  Army Regulation 635- 200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  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 appropriate for a Soldier discharged under this chapter.  

21.  Army Regulation 135-178, states that a Soldier may be discharged for misconduct when it is determined that the Soldier is unqualified for further military service by reason of one or more of the following circumstances:

   a.  Abuse of illegal drugs.  Abuse of illegal drugs is serious misconduct. Discharge action normally will be based upon commission of a serious offense. However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more disciplinary infractions or incidents of other misconduct and processed for discharge under a or b, as appropriate.

   b.  A pattern of misconduct.  A pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline include conduct which violates the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.
   
22.  Army Regulation 635-40, states, except as provided below, an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. 

   a.  The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions. 
   
   b.  Other circumstances warrant disability processing instead of alternate administrative separation

DISCUSSION AND CONCLUSIONS:

1.  Although a copy of the applicant's chapter 14 discharge packet is not in his available records, the presumption of regularity must be applied.  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.

2.  The evidence of record shows the following:

* 15 March 2003 - ordered to AD
* 16 December 2003 - NJP, Medical Hold Company, cocaine
* 15 March 2004 - report for ADME 90 days, end 12 June 2004
* 3 May 2004 - notified of initiation of chapter 14, JAG reviewed
* 4 May 2004 - NJP, Medical Hold Company, cocaine
* 4 May 2004, released from ADME 
* 4 May 2004 - issued DD Form 214, Honorable
* 22 June 2004 - notified of PEB on 30 June 2004
* 25 June 2004 - SCARNG memorandum to initiate administrative separation immediately
* 1 July 2004 - general discharged from ARNG 
* 5 March 2005 - DD Form 215, changed to general, chapter 14, and JKQ separation code
* 8 April 2009, DD Form 215, corrected, entry date, separation date, and net service (not previously corrected)

3.  Evidence further shows he was assigned to the Medical Hold Company and was going through medical processing until 12 June 2004, when he came up positive for cocaine use for the second time.  On 3 May 2004, he was notified of the initiation of separation under the provisions of chapter 14 and the following day he received NJP for cocaine use.  Although his signature is not contained on the "Acknowledgement of Receipt of Notification" portion of the commander's memorandum, JAG reviewed his chapter 14 packet and determined it was legally sufficient.  

4.  In accordance with Army Regulation 635-40, as cited in paragraph 22 of this document, the he cannot continue physical disability processing when action has been started which authorizes a characterization of service of under other than honorable conditions, as with a chapter 14 discharge.  Therefore, his argument that his MEB/PEB were not considered is not supported by the available evidence.

5.  He further states his current enlistment date, current enlistment term of service, and separation date from AD were wrong.  However, his DD Form 215, dated 8 April 2009, changed his date entered AD to 15 March 2003 and his separation date to 25 May 2004.  Since item 18, is unreadable, it is unknown what date is listed for his enlistment term of service and he did not specify. 

6.  It is unknown why his 4 May 2004 DD Form 214 was issued indicating he received an honorable discharge for completion of his required AD service when the evidence clearly shows he was still being processed under chapter 14.  Nevertheless, the evidence shows he received two NJP's for cocaine use while undergoing medical processing.  The record further shows his discharge accurately reflects his overall record of service.

7.  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)                                         AR20100014025





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ABCMR Record of Proceedings (cont)                                         AR20100014025



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