PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:             22 March 2000
	DOCKET NUMBER:    AR1999031848

	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.  

	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Arthur A. Omartian		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his Separation Program Number (SPN) be corrected. 

3.  The applicant states, in effect, that the SPN of 284 (Misconduct, Convicted or Adjudged a Juvenile Offender by a Civil Court during Current Term of Active Military Service), which is contained on the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), issued him at discharge is incorrect.  He claims this SPN indicates that he was adjudged a youthful offender by a civil court during his military service.  This is not correct and the SPN contained in his separation document is clearly in error.  He indicates that had he known the meaning of the code he would have requested a change years ago and he only recently found out the meaning of the code.  He contends that he was shocked to learn the meaning of the SPN code and claims that it is reasonable to assume that this derogatory code indeed had a negative impact on his ability to secure meaningful employment.

4.  The applicant’s military records were not available for review by this Board.  However, the available evidence of record does include a properly constituted DD Form 214, issued to and signed by the applicant on the date of his discharge. This document shows that the applicant entered the Regular Army on 15 April 1971.  

5.  In addition, the applicant has provided a copy of his separation packet which outlines the facts and circumstances concerning his separation processing.  It shows that on 16 February 1973, the applicant’s unit commander notified him of the intent to begin discharge proceedings, under the provisions of chapter 13, Army Regulation 635-200 for unfitness.  The unit commander cited the applicant’s character traits related to drug abuse, as the basis for taking the action.

6.  On 27 February 1973, the applicant consulted legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  He completed his election of rights statement by waiving the following rights:  to have his case considered by an administrative separation board of officers; to a personal appearance before this board of officers; and representation by counsel.  In addition, he elected not to submit a statement of rebuttal in his own behalf. 

7.  On 8 March 1973, a social counselor prepared a case status report on the applicant, which indicated that he had been referred to the Community Drug and Alcohol Assistance Center (CDAAC) on 13 February 1973 for instances of drug abuse and hospitalization resulting from its illegal use.  The counselor indicated that the applicant had been exposed to counseling since that date.  The applicant stated to counselors that rehabilitation efforts would be useless since he enjoyed using drugs and intended to continue to use them.  

8.  During a counseling session at the CDAAC in March 1973, the applicant advised his drug counselor that he had used cocaine just prior to coming to the session.  The CDAAC report also indicated that the applicant had experienced three incidents of drug overdoses in the past year.  The final recommendation of CDAAC counselors, given the applicant’s negative attitude toward rehabilitation and his continued admitted use of heroin, amphetamines, and cocaine, was that the applicant be processed for discharge, under the provisions of chapter 13, Army Regulation 635-200.

9.  On 13 March 1973, the unit commander forwarded a recommendation for the applicant’s separation, under the provisions of chapter 13, Army Regulation 
635-200 for unfitness.  He cited the applicant’s habits and traits of character manifested by repeated drug use, as the basis for the action.  The unit commander’s submission indicated the applicant had no other record of misconduct.  On this same date, the intermediate level commander concurred with the unit commander’s recommendation for separation and requested that further rehabilitation efforts be waived.  

10.  On 22 March 1973, the appropriate authority approved the applicant’s separation.  It was also directed that the applicant be discharged for unfitness, under honorable conditions, based on drug abuse and that SPN 384 (Unfitness-Drug Abuse) be reflected on the DD Form 214.  Accordingly, on 20 April 1973, the applicant was discharged after completing 2 years and 5 months of active military service.  However, someone in the discharge process erroneously entered the incorrect SPN code of 284, vice the correct code of 384, on the 
DD Form 214 issued to the applicant.

11.  Army Regulation 635-5-1, in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  The SPN code of 384 was the appropriate code for the applicant based on the guidance provided in this regulation for soldiers separating under the provisions of paragraph 
13-5a (3), Army Regulation 635-200 for unfitness-drug abuse.  SPN code 284 is clearly defined in the regulation as being used in the case of a soldier being discharged for misconduct based on being convicted or adjudged a juvenile offender by a civil court during his current term of service.  

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation provided, in pertinent part, that members who abused illegal drugs were subject to separation for unfitness.  

13.  Department of Defense (DOD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, establishes uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, United States Code, section 1553, and applies to the Office of the Secretary of Defense and the Military Departments.  Section 4 of that Directive sets forth the objectives for discharge review.  It provides that a discharge shall be deemed proper unless it is determined that a change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.  Furthermore, a discharge shall be deemed to be equitable unless there is substantial doubt the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time the discharge was considered, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

14.  Army Regulation 635-200, chapter 14 contains the current policy and procedures for separating members for misconduct.  Paragraph 14-12c (2) provides the specific guidance for processing drug offenders.  It further provides that action should be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 

15.  Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program) prescribes the current policies and procedures needed to implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  Paragraph 1-11b (Illegal Drugs) provides guidance on the separation processing of soldiers who are identified as illegal drug abusers and mandates that first time drug offenders, who hold the grade of E-5 or above, will processed for separation.  Paragraph 4-26 (Separation Actions) states, in pertinent part, that offenses of alcohol or other drug abuse may properly be the basis for discharge proceedings under chapter 14 of AR 635-200.  However, it also indicates that the evidence aspect of the limited use policy is applicable to discharges, under the provisions of paragraph 14-12, as it is under all other separation provisions.

16.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge, within the 15 year statute of limitations. 

17.  Paragraph 6-4 (Definition of Limited Use Policy) prohibits the use of limited use evidence against a soldier in actions under the Uniform Code of Military Justice or on the issue of characterization of service in separation proceedings.  It states, in pertinent part, that admissions made by a soldier enrolled in ADAPCP to an ADAPCP counselor during a scheduled interview concerning drug or alcohol abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to ADAPCP is defined as limited use information.  The improper introduction of limited use evidence into the discharge process by the government mandates an honorable discharge.  

CONCLUSIONS:

1.  After carefully examining the evidence or record and the independent evidence submitted by the applicant, the Board concluded that the SPN contained on the applicant’s DD Form 214 is incorrect and was erroneously changed by someone in the discharge process.  Therefore, the Board concludes that it would be appropriate to correct this error by changing the applicant’s SPN code to 384, as approved by the separation authority.

2.  Further, although the applicant’s discharge was proper at the time it was issued, the Board found that had the Army Discharge Review Board (ADRB) reviewed the discharge under DOD Directive 1332.28, it is reasonable to presume that it would have been upgraded based on the application of the current regulatory limited use evidence rules. 

3.  Although DOD Directive 1332.28 provides policy for review of discharges for Discharge Review Boards, it appears appropriate that this Board adopt and apply the standards set forth in this Directive for this particular case.

4.  The introduction of the CDAAC status report into the discharge process by the government violates the current standard limited use evidence rules.  This violation is the result of the CDAAC report containing the applicant’s admission of drug use to a counselor, while enrolled in a rehabilitation program, being included in the separation packet.  Although, using the report was valid at the time, it does violate current limited use evidence rules, which mandates the award of an honorable characterization of service.  Therefore, the Board determined that it would be appropriate to upgrade the applicant’s discharge to fully honorable at this time.  

5.  The Board noted that the regulation currently in effect lists the narrative reason for the applicant’s discharge simply as misconduct and does not make reference to drug abuse.  Therefore, based on this current regulatory standard, the Board concluded it would be appropriate to change the narrative reason for the applicant’s discharge to misconduct.  
6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a.  showing the SPN code of the individual concerned as 384.

b.  upgrading the characterization of service for the individual concerned to honorable; and 

c.  by showing the narrative reason for separation for the individual concerned as misconduct.

BOARD VOTE:  

___ja___  ___tsk___  __ao____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____James M. Alward_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999031848	
SUFFIX		
RECON		
DATE BOARDED	2000/03/22	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1973/04/20	
DISCHARGE AUTHORITY	AR 635-200 C13	
DISCHARGE REASON	Unfitness	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.