IN THE CASE OF:	  

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140010685 


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 his general, under honorable conditions discharge be upgraded to an honorable discharge and removal of the "claimed cocaine use" from his record.

2.  The applicant states no criminal charges or court-martial proceedings were initiated against him.  For the past 10 years he has been unable to clear his military record from showing his "alleged" cocaine use.  The alleged cocaine use has prevented him from many employment opportunities for which he was qualified based on Federal Bureau of Investigation background checks.

3.  The applicant provides no supporting documents.

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.  Documents related to criminal investigations are maintained by the U.S. Army Criminal Investigation Command (CID).  There is no evidence the applicant exhausted his administrative remedies by requesting an amendment or removal of any records pertaining to the investigation of him conducted by CID concerning his drug abuse.  He may exhaust his administrative remedies by submitting a request to the CID.  Information on initiating a request is available online at http://www.cid.army.mil/foia_forms.html.  He may also submit a written request to U.S. Army Crime Records Center, ATTN: CICR-FP, Russell Knox Building, 27130 Telegraph Road, Quantico, VA 22134-2253.  This administrative remedy must be exhausted prior to consideration of this portion of his case by this Board.  Therefore, this portion of his request will not be discussed further.

3.  The applicant enlisted on 26 February 2004, completed training, and was awarded military occupational specialty 13M (Multiple Launch Rocket System Crewmember).

4.  On or about 9 November 2004, the applicant's commander was notified the applicant tested positive for a controlled substance.  The commander was directed by letter to refer the applicant for an initial screening interview to the Army Substance Abuse Program (ASAP) Counseling Center and to notify CID of the applicant's offense.  The CID has the overall responsibility for offenses involving controlled substances. 

5.  On 15 November 2004, CID initiated an investigation pertaining to the applicant's wrongful use of a controlled substance based on a 1 November 2004 command directed urinalysis.  He had tested positive for cocaine. 

6.  The applicant tested positive for cocaine a second time on 15 November 2004.

7.  On 22 November 2004, the applicant was enrolled in the ASAP with a diagnosis of cocaine dependence.

8.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 15 December 2004 for wrongful use of cocaine between on or about 16 October 2004 and on or about 15 October 2004.

9.  On 29 November 2004, the CID confirmed the applicant had wrongfully used a controlled substance-cocaine on 1 November 2004.  His records show he tested positive for cocaine use on 4 separate occasions between 10 October 2004 and 11 August 2005.
10.  The applicant accepted a second NJP on 23 August 2005 for wrongful use of a controlled substance (cocaine) between on or about 24 June 2005 and 27 June 2005.

11.  On 25 August 2005, the Clinical Director of the ASAP declared the applicant a rehabilitation failure and stated the applicant's drug involvement meets the DSM-IV criteria on Axis I – 304.20 Cocaine Dependence.  The director informed the commander the applicant met the criteria under the provisions of Chapter 9, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) as a rehabilitation failure. 

12.  On 13 September 2005, the unit commander notified the applicant of his intent to initiate separation action under the provisions of Army Regulation 635-200, chapter 9, for drug rehabilitation failure.  

13.  On the same date, the applicant acknowledged he had been advised of the basis for the contemplated action to separate him for drug abuse under the provisions of Army Regulation 635-200, chapter 9, and its effects; the rights available to him; and the effect of any action taken by him in waiving his rights.  He waived his right to counsel and he did not make statements on his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  

14.  The separation authority approved the recommendation to separate the applicant under the provisions of Army Regulation 635-200, chapter 9, and directed issuance of a General Discharge Certificate.  His DD Form 214 shows he was discharged in accordance with the separation authority's directive on 26 October 2005.

15.  On 9 November 2007, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

   b.  Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse.  A member who has been referred to ASAP for alcohol/drug abuse may be separated because of one's 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.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions. 
   
17.  Army Regulation 600-37 (Unfavorable Information) states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  This regulation provides that NJP under the UCMJ, Article 15 and completed investigative reports to include criminal investigative reports (or authenticated extracts) that result in elimination or disciplinary action may be filed in the OMPF.  Once filed in the OMPF, the NJP and associated elimination documents are permanent.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records ABCMR)) states the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded and information related to his drug abuse removed from his records so he can seek post service employment.  

2.  Once he had been placed in the ASAP, he was obligated to meet program requirements.  Failure to do so constituted a failure to meet the standards of acceptable conduct and performance of duty for Army personnel, which warranted a general discharge.  The separation authority determined a general discharge was appropriate.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.  There is no evidence of mitigating factors that would support changing the separation authority's decision.

3.  Once the elimination packet with supporting documents to include the NJPs and positive drug analysis reports are filed in the OMPF, they are permanently filed unless the individual concerned provides mitigating evidence to show they were falsely prepared and filed.  The applicant failed to provide sufficient evidence to show the documents related to his drug use were improper or falsely prepared.  Therefore, there is no justification to remove them from his OMPF.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  

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)                                         AR20140010685



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ABCMR Record of Proceedings (cont)                                         AR20140010685



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