IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20120011028 


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 under honorable conditions be upgraded to honorable.

2.  The applicant states he did not have multiple cases of misconduct and did not sign anything that stated he was barred from reenlistment.  He contends that he consumed and shared food with other Soldiers that must have been tainted with an illegal substance.  No investigation was done.  He was simply processed for separation.

3.  The applicant provides no additional evidence.

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 27 September 1993, the applicant enlisted in the Louisiana Army National Guard (ARNG) and as a Reserve of the Army.

3.  On 19 May 1994, the applicant was ordered to active duty for training (ADT).  He completed this training and was awarded military occupational specialty 13B (Cannon Crewmember).  On 13 September 1994, he was released from ADT and returned to his ARNG unit.

4.  On 10 December 1995, the applicant was convicted by a summary court-martial of violation of Article 86, Uniform Code of Military Justice, for being absent without leave (AWOL).

5.  On 20 July 1996, the applicant underwent a urinalysis screening.  A DD Form 2624 (Specimen Custody Document – Drug Testing), dated 1 August 1996, reports the applicant's specimen was determined to be positive for drug use.

6.  A National Guard Bureau Form 602-R (Bar to Enlistment, Immediate Reenlistment or Extension), dated 14 September 1996, shows the appropriate commander barred the applicant from any further enlistments.  The applicant's signature and initials appear on this form indicating he had been furnished a copy of the document, had been counseled and advised of the basis of this action, and he did not desire to submit a statement on his own behalf.  This form clearly states the reason for this action was acts or patterns of misconduct.

7.  On 14 September 1996, the applicant's commander notified him of his intention to separate him from the Louisiana ARNG and as a Reserve of the Army for misconduct based on his illegal use of drugs.

8.  On 14 September 1996, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

9.  On 7 October 1996, The Adjutant General, State of Louisiana, approved the recommendation for discharge and directed his discharge under honorable conditions.

10.  Accordingly, the applicant was discharged under honorable conditions on 7 October 1996.  He completed 3 years and 11 days of creditable service.



11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Soldiers would be processed for discharge on discovery of a drug offense.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority might direct a general discharge if such were merited by the Soldier's overall record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge under honorable conditions should be upgraded to honorable because he did not have multiple cases of misconduct and did not sign anything that stated he was barred from reenlistment.  He also argues that the drugs in his system must have been consumed in tainted food.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

4.  The applicant has not provided any documentary evidence or a convincing argument showing that he had unknowingly ingested illegal drugs.  Furthermore, the applicant's contention that he did not sign anything concerning his bar to reenlistment is contrary to the evidence of record containing both his signature and initials indicating he had been counseled, he did not desire to submit a statement, and he received a copy of the bar to reenlistment.

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 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)                                         AR20120011028



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ABCMR Record of Proceedings (cont)                                         AR20120011028



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