RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 September 2006
      DOCKET NUMBER:  AR20060001293


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |Member               |

      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 general discharge (GD),
characterized as under honorable conditions, be upgraded to honorable.  He
also requests that the entry "Chapter 9 AR 635-200" in item 25 (Separation
Authority), of his DD Form 214 (Certificate of Release or Discharge from
Active Duty), and the entry "DRUG ABUSE – REHABILITATION FAILURE" in item
28 (Narrative Reason for Separation), of his DD Form 214, be deleted.

2.  The applicant states, in effect, that he believes the discharge
classification (General Discharge Under Honorable Conditions) that he
received from the Army in 1983 was unjust, inequitable, and improper.  He
received a general discharge, under honorable conditions, for drug abuse-
rehabilitation failure.  After serving over 5 years in Germany, his service
took a heavy toll upon his family.  He did not qualify for a hardship
discharge, so after spending days at the military library, he came across
an obscure discharge.

3.  The applicant provides a copy of his DD Form 214; a copy of his
honorable discharge; and letter dated, 27 April 1983, in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 May 1983, the date of his discharge.  The application
submitted in this case is dated 22 January 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's military records show he entered active duty 24 October
1975, for training as a radio teletype operator (O5C).  He was promoted to
specialist four (SP4/E-4) effective 29 December 1976.

4.  He was convicted by a special court-martial of failing to go to his
appointed place of duty.  His sentences consisted of two hours extra duty
for 14 days.
5.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record
– Part II), shows that he was absent without leave (AWOL) from 4 to
7 August 1978 (4 days).

6.  The applicant continued to serve until he was honorably discharge on
30 July 1980, in order to reenlist.  He reenlisted on 31 July 1980.  He was
promoted to sergeant (SGT/E-5) effective 10 December 1980.

7.  On  27 April 1983, the MSW (Master of Social Work), OIC (Officer in
Charge), Budingen, CCC (Community Counseling Center) prepared a letter for
the Commander of Headquarters and Headquarters Battery (HHB), 3rd
Battalion, 61st Air Defense Artillery, Subject:  Synopsis of ADAPCP
(Alcohol and Drug Prevention and Control Program) Rehabilitative
Activities.  The OIC stated that the applicant referred himself to the
ADAPCP on 17 March 1983.  During that interview, the applicant admitted to
long term use of cannabis and stated that he did not feel he could make a
commitment to stop.  As a result of his admitted substance use and his
refusal to participate in any rehabilitation effort to stop, the commander
elected to declare the applicant a rehabilitative failure, return him to
duty with no ADAPCP services required, and process him immediately for
Chapter 9 discharge.  The applicant's counselor concurred.  The OIC then
indicated that the applicant's potential for rehabilitation was very poor.


8.  On 9 May 1983, the applicant's commander notified him that he was
initiating action to separate him from the service under the provisions of
Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.
He cited as the basis for his recommendation, the applicant’s self-referral
to the Budingen, CCC, on 17 March 1983 and his admission to long term use
of marijuana and his statement that he would not quit.  As a result, he was
considered a rehabilitative failure.

9.  After consulting with counsel, the applicant waived his rights.  He
elected to submit a statement in his own behalf.  His statement, however,
is unavailable for review.

10.  On 24 May 1983, the separation authority approved the
recommendation for discharge and directed that the applicant be
furnished a GD, with his service characterized as under honorable
conditions.  The applicant was discharged on 31 May 1983, in the pay
grade of E-5.  He had a total of 7 years, 7 months, and 3 days of
creditable service.



11.  Item 25 (Separation Authority), of the applicant's DD Form 214, shows
the entry "CHAPTER 9 AR 635-200"; item 26 (Separation Code), shows the
entry "JPC (JKK)"; and item 28 (Narrative Reason), shows the entry "DRUG
ABUSE – REHABILITATION FAILURE."

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

13.  Army Regulation 600-85 prescribes policies and procedures needed to
implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention
and Control Program (ADAPCP).  Paragraph 3-2, of Army Regulation 600-85
pertains to voluntary (self) identification.  It states in pertinent part
that this is the most desirable method of discovering alcohol or other drug
abuse.  The individual whose performance, social conduct, interpersonal
relations, or health becomes impaired because of the abuse of alcohol or
other drugs has the personal obligation to seek treatment and
rehabilitation.

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 the Army's 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 635-200, paragraph 3-7a 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, 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.

16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor
disciplinary infractions, a pattern of misconduct, commission of a serious
offense, and convictions by civil authorities.  Action will be taken to
separate a member for
misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  A discharge under other than
honorable conditions is normally appropriate for a Soldier discharged under
this chapter.

17.  Paragraph 14-12c(2) provides for separation for commission of a
serious offense such as abuse of illegal drugs.  

18.  Army Regulation 635-5-1, in effect at that time, prescribed 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 separation program designator (SPD) “JPC”, as
shown on the applicant’s DD Form 214, specifies the narrative reason for
discharge as "Drug Abuse - Rehabilitation Failure" and that the authority
for discharge under this SPD is "Army Regulation 635-200, chapter 9."

19.  The same regulation also shows that the SPD of "JKK", as shown on the
applicant's DD Form 214, specifies the narrative reason for discharge as
"Misconduct" and that the authority for discharge under this SPD is "Army
Regulation 635-200, chapter 14-12c (2)."

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant self-referred himself to the
ADAPCP on 17 March 1983.  He admitted to long term use of cannabis and
stated that he did not feel that he could make a commitment to stop.  As a
result of his admission and his refusal to participate in any
rehabilitation effort to stop, the commander elected to declare the
applicant a rehabilitative failure.  He was returned him to duty with no
ADAPCP services required, and processed immediately for a Chapter 9
discharge.  His potential for rehabilitation was considered very poor.

2.  Separation proceedings were initiated against the applicant under the
provisions of Army Regulation 635-200, chapter 9, for drug abuse –
rehabilitative failure.

3.  The evidence shows that the applicant was discharged under the
provisions of Army Regulation 635-200, chapter 9, for drug abuse -
rehabilitation failure.  He was issued an SPD Code of "JPC (JKK)" and was
furnished a general discharge, under honorable conditions.

4.  It is noted that the applicant’s separation authority "chapter 9 AR
635-200" and the narrative reason for his separation of "drug abuse –
rehabilitation failure" were correct in accordance with regulations, then
in effect, and as shown on his DD Form 214.  Therefore, in the absence of
evidence to show these entries were made erroneously, there is an
insufficient basis to delete these entries from his DD Form 214.

5.  The applicant has provided no evidence, and there is none, to show that
his discharge classification of "general, under honorable conditions" that
he received from the Army in 1983, was unjust, inequitable, or improper.

6.  It is noted that the applicant had two separation code shown in item
26 (Separation Code), of his DD Form 214.  The separation code of "JKK"
specified the narrative reason for discharge as "misconduct, such as abuse
of illegal drugs" and the authority for discharge under this SPD was "Army
Regulation 635-200, chapter 14-12c(2).  The additional separation code of
"JPC" specified the narrative reason for discharge as "drug abuse –
rehabilitation failure" and the authority for discharge under this SPD was
"Army Regulation 635-200, chapter 9."

7.  It is apparent from the different fonts shown on the form that the
separation code of "JKK" was the originally used code and the form was
later corrected by those responsible for the preparation and distribution
of the DD Form 214 by entering the code of "JPC."  Therefore, the applicant
was separated with two separation codes.  Is noted that there is no valid
reason at this time to change these codes and the two codes will remain on
the applicant's DD Form 214.  The applicant is advised that the code "JPC"
is most correct since it corresponds to the reason for his separation from
the Army.

8.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 May 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 30 May 1986.  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 timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____A___  __RT____  __ML___  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.




                                  _____James E. Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001293                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 9                   |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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