RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 April 2007 DOCKET NUMBER: AR20060012825 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. x The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his narrative reason for separation under the provisions of chapter 9, Army Regulation 635-200 be removed from his DD Form 214 (Report of Separation from the Active Duty). 2. The applicant states that a major at the discharge center told him the chapter 9 would only be for government use and would not be released to the general public. 3. The applicant provides a letter from the National Personnel Records Center, St. Louis, Missouri, dated 2 February 2006 and a supplemental letter. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 15 August 1978. The application submitted in this case is dated 1 September 2006. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant enlisted in the Regular Army on 1 April 1976 for a period of three years. He completed basic combat training and advanced individual training and was awarded military occupational specialty 63F (Recovery Specialist). He was advanced to private first class on 24 June 1977. 4. On 5 December 1977, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for leaving his appointed place of duty. His punishment consisted of 7 days of extra duty and a forfeiture of $61.00 pay (suspended for 60 days). 5. Item 21 (Time Lost) on the applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave on 16 February 1978 and was confined by civil authorities from 21 April 1978 to 24 April 1978. 6. Between 15 May 1978 and 13 June 1978, the applicant accepted nonjudicial punishment under Article 15, UCMJ on four separate occasions for offenses such as being absent from his place of duty; failing to go to his appointed place of duty; leaving his appointed place of duty; and disobeying a lawful order. 7. On 2 August 1978, the unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, chapter 9 based on alcohol or other drug abuse. He was advised of his rights. The unit commander indicated that the applicant had referred himself to the Drug and Alcohol Program at Fort Bliss, Texas on 27 April 1978. After numerous discussions with the applicant’s supervisors and counselor, the unit commander determined that the applicant had made no effort to stop using drugs. The applicant’s numerous absences from his place of duty and his declining duty performance, even after he was counseled on several occasions, led to the unit commander’s decision to eliminate him from further military service. 8. The applicant acknowledged notification of the pending separation action, he declined consultation with military legal counsel, and did not submit statements in his own behalf. 9. On 9 August 1978, the separation authority approved discharge under the provisions of Army Regulation 635-200, chapter 9 with issuance of an Honorable Discharge Certificate. 10. On 15 August 1978, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 9 for alcohol or other drug abuse. He completed 2 years, 4 months, and 10 days of active military service with 5 days of lost time. 11. The applicant’s personnel records contain Copy 2, Copy 4, and Copy 8 of his DD Form 214. 12. Copy 2 and Copy 8 of the applicant’s DD Form 214 shows the entry “Chap 9 AR 635-200 SPD: JPB" in item 9c (Authority and Reason). 13. Copy 4 of the applicant’s DD Form 214 has a dashed line in item 9c and the entry “SPD: JPB Alcohol or other drug abuse” in item 27 (Remarks). 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of 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. 15. 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 separation program designators to be used for these stated reasons. The regulation shows that the SPD code “JPB” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Alcohol or Other Drug Abuse” and that the authority for discharge under this separation program designator is “AR 635-200, chapter 9." 16. Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214. It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. In the version in effect at the time, it directed that the statutory and or regulatory authority for separation and the SPD would be entered in item 9c on the DD Form 214. The regulation states that the narrative reason for separation would not be shown in item 9c and a dashed line (---) would be typed on all copies furnished to the individual and Veterans Administration. The regulation also states that the narrative reason for separation will be the last entry in item 27 of the copy furnished to the Veterans Administration. 17. Table 3-1 of Army Regulation 635-5, in effect at the time, contained the detailed instructions for distributing the DD Form 214. This table indicated that Copy 1 was delivered to member. Copy 2, Copy 4, and Copy 8 were filed in the Military Personnel Records Jacket (MPRJ). Copy 3 was to be forwarded to the Veterans Administration. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows that the applicant was separated from active duty under the provisions of Army Regulation 635-200, chapter 9 for drug abuse in compliance with applicable regulations. 2. Since Copy 1 of the DD Form 214 is not in the applicant’s records, it is presumed he was properly issued that copy, and it is presumed it was properly prepared with a dashed line in item 9c. Copy 2 and Copy 8 (which were filed in the MPRJ) properly reflect the regulatory authority for separation under the provisions of Army Regulation 635-200, chapter 9 in item 9c with a SPD of “JPB.” Therefore, there is no basis for removing his narrative reason for separation from his DD Form 214. 3. It is acknowledged that Copy 3 (the copy to be furnished to the Veterans Administration) of the DD Form 214 was not supposed to reflect the narrative reason for separation in item 9c. However, Copy 3 was to list the narrative reason for separation as the last entry in item 27. It appears the clerk preparing the DD Form 214 may have also (or instead) placed that entry on Copy 4 (which was filed in the MPRJ). That copy is in his MPRJ, and does not therefore appear to have been of detriment to the applicant. 4. Since the applicant did not provide his Copy 1 of his DD Form 214, it cannot be determined if that copy was properly prepared. In the absence of having that copy to review it is presumed that it was properly prepared with a dashed line in item 9c. 5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 August 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 August 1981. The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING x_____ x______ x______ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. x________ CHAIRPERSON INDEX CASE ID AR20060012825 SUFFIX RECON YYYYMMDD DATE BOARDED 20070405 TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY Mr. Schwartz ISSUES 1. 110.0000 2. 3. 4. 5. 6.