RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 November 2003
         DOCKET NUMBER: AR2003090926


         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. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Ms. Linda D. Simmons		Member
Mr. Robert Duecaster		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his general discharge be upgraded to honorable.

2. The applicant states that he was not court-martialed for any offense. He contends that a major gave him permission, upon his request, to leave the Armed Forces because his mother was sick with cancer. He also contends that the major told him that he would receive an honorable discharge upon his release. He further contends that a drug and alcohol notation at the bottom of his discharge document is the supposed reason for his discharge. He states that he was admitted in the service with asthma and flat feet and that he never used these excuses to draw funds from the Government as a disability.

3. The applicant did not provide any evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on
31 March 1982. The application submitted in this case is dated 6 May 2003.

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 limitation 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 on 8 February 1980 for a period of 3 years. He successfully completed basic training and advanced individual training in military occupational specialty 72E (telecommunications center operator).

4. On 27 October 1980, nonjudicial punishment was imposed against the applicant for possession of marijuana. His punishment consisted of a reduction to E-1, a forfeiture of pay (suspended for 90 days), extra duty, and restriction.

5. On 20 November 1980, the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for marijuana use. He was later released from the program.

6. Records show that a military police investigation for wrongful possession of marijuana was conducted in April 1981 with no action taken against the applicant.

7. On 8 June 1981, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of a reduction to E-1 (suspended until 6 October 1981), a forfeiture of pay (suspended until 6 October 1981), and extra duty.

8. On 19 November 1981, the applicant was re-entered in the ADAPCP following another military police investigation for wrongful possession of marijuana.

9. Records show the applicant submitted two positive urine specimens for marijuana.

10. The applicant was diagnosed with chronic asthmatic bronchitis on
18 February 1982.

11. On 25 February 1982, the Clinical Director of the ADAPCP declared the applicant a rehabilitation failure. Subsequently, based on the recommendation of the Clinical Director of the ADAPCP, the applicant's unit commander declared him to be a drug and alcohol abuse rehabilitation failure.

12. On 16 March 1982, the applicant underwent a separation physical examination and was found qualified for discharge. Item 36 (Feet) on the applicant's Standard Form 88 (Report of Medical Examination) shows competent medical authority found the applicant's feet normal.

13. On 23 March 1982, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure. He waived consultation with military legal counsel and elected not to submit a statement on his own behalf.

14. The applicant’s unit commander submitted a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-200, chapter 9, for drug and alcohol abuse rehabilitation failure.

15. The separation authority approved the recommendation for discharge and directed that the applicant be furnished a general discharge.

16. Accordingly, the applicant was discharged with a general discharge on
31 March 1982 under the provisions of Army Regulation 635-200, chapter 9, for alcohol or drug abuse rehabilitation failure. He had served 2 years, 1 month and 23 days of creditable service.

17. There is no evidence in the applicant's service personnel records which shows that he had any medically unfitting disability which required physical disability processing.

18. There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for a discharge upgrade with its 15-year statute of limitations.

19. 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 the 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. At the time of the applicant's separation an honorable or general discharge was authorized.

20. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1. There is no evidence of record, and the applicant has provided no evidence, to support his contention that a major gave him permission, upon his request, to leave the Armed Forces because his mother was sick with cancer.

2. There is no evidence of record, and the applicant has provided no evidence, to support his contention that the major told him that he would receive an honorable discharge upon his release. Evidence of record shows the applicant waived his right to consult with counsel prior to his discharge.

3. There is no evidence in the applicant's service personnel records which shows that he had any medically unfitting disability which required physical disability processing.

4. 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.

5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6. Records show the applicant should have discovered the error or injustice now under consideration on 31 March 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 March 1985. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

JL______ LDS____ RD______ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.




                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090926
SUFFIX
RECON
DATE BOARDED	20031120
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19820331
DISCHARGE AUTHORITY	AR 635-200 CHAPTER 9
DISCHARGE REASON	Alcohol or Drug abuse rehabilitation failure
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.