RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  October 4, 2007
	DOCKET NUMBER:  AR20070004689 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery

Member

Mr. Qawiy A. Sabree

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 the reason for his discharge be changed and his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was in a drug rehabilitation program prior to being discharged from the U.S. Army.  He also states, in effect, that after he was discharged, the U.S. Army sent him a letter stating that a mistake was made regarding his discharge and that he could either reenter the Army, pursue the matter through legal action in civil court, or take no action.  The applicant further states, in effect, that he took no action at the time; however, he now requests that his discharge be corrected so he may apply for a Department of Veterans Affairs (VA) home loan.

3.  The applicant provides a copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 1 March 2007; and a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 8 April 1983.

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.  The applicant enlisted in the U.S. Army Reserve on 22 October 1980 and entered active duty in the Regular Army, for a period of 3 years, on 28 July 1981. Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  He was assigned to the 184th Ordnance Company in Germany on 11 January 1982.

3.  The applicant's military service records contain a DA Form 4466 ADAPCP [Alcohol and Drug Abuse Prevention and Control Program] Client Progress Report), dated 1 February 1983.  This document shows, in pertinent part, that the Department of the Army civilian serving as the Clinical Director, ADAPCP, indicated the applicant was progressing during rehabilitation and that he recommended the applicant’s retention on active duty.  This document also shows that the applicant’s efficiency was rated satisfactory and his conduct was rated unsatisfactory.

4.  The applicant's military service records contain a copy of Headquarters, U.S. Military Community Activity Darmstadt, Babenhausen Subcommunity (Germany), memorandum, dated 17 February 1983, subject: Synopsis of ADAPCP Rehabilitation Activities.  This document shows, in pertinent part, that the Clinical Director, ADAPCP, noted that the applicant was enrolled in the ADAPCP on
1 November 1982, resulting from self-referral for drug abuse; was enrolled in Track II rehabilitation and participated in 0 hours of awareness education,
3 sessions of individual counseling, 4 sessions of group counseling, and
6 urinalysis tests, 1 of which was positive for Tetrahydrocannabinol (THC); and that he had 7 urinalysis “no-shows.”  This document also shows that the applicant’s progress during the first 30 days was satisfactory; however, he received a positive urinalysis on 5 January 1983 and that his potential for successful rehabilitation was poor.

5.  The applicant's military service records contain an SF 88 (Report of Medical Examination), dated 25 February 1983, prepared upon medical examination of the applicant for the purpose of his separation from active duty under the provisions of Army Regulation 635-200, Chapter 9.  In Item 73 (Notes and Significant or Interval History) the physician indicated that he had reviewed the applicant’s Health Record; the patient had entered an active Certified Drug, Alcohol, and Addictives Counseling (CDAAC) program on 1 November 1982 for drug abuse; and was classified a rehabilitative failure on 17 February 1983.  Item 74 (Summary of Defects and Diagnoses) shows, in pertinent part, that the physician annotated “drug abuse.”  In Item 77 (Examinee) it shows that the physician indicated the applicant was qualified for administrative separation.

6.  On 14 February 1983, the captain serving as Commander, 184th Ordnance Company (Germany), notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation
635-200, Chapter 9, with either an honorable or general discharge certificate.  The reasons for the proposed action were based on the fact that the applicant 


enrolled in the ADAPCP on 1 November 1982 and tested positive for THC on
5 January 1983, indicating an unwillingness on the part of the applicant to alter his lifestyle and conform to U.S. Army standards.

7.  On 14 February 1983, the applicant acknowledged receipt of the notification of separation action under the provisions of Army Regulation 635-200, Chapter 9. The applicant also acknowledged that military legal counsel for consultation was available to assist him.  The applicant indicated he desired military legal counsel for consultation be appointed to assist him and elected to submit statements in his behalf for consideration.  The applicant also requested treatment in a VA medical center.

8.  On 28 February 1983, the applicant submitted a statement on his own behalf to his commander.  This document shows, in pertinent part, that the applicant acknowledged his past performance “wasn’t that good” and that he made a mistake, but that he only came up positive once during periodic urinalysis testing. He also indicated that he did not want to be discharged from the Army.

9.  The Commander, 184th Ordnance Company (Germany) subsequently recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 9.  In support of the recommendation the commander submitted documentation showing that the applicant enrolled in the ADAPCP on 1 November 1982; was enrolled in Track II rehabilitation and participated in 3 sessions of individual counseling, 4 sessions of group counseling, and 6 urinalysis tests, 1 of which was positive for THC on
5 January 1983; and that further rehabilitation efforts were not practical.

10.  The applicant's military service records contain a DA Form 4126-R (Bar to Reenlistment Certificate), dated 3 March 1983, with Headquarters, 15th Ordnance Battalion (Germany), 1st Endorsement, dated 7 March 1983.  These documents show that a bar to reenlistment was imposed against the applicant based upon a positive urinalysis test for THC after being enrolled in the ADAPCP for a period of 2 months and that the battalion commander approved the bar to reenlistment.

11.  The applicant’s military service records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 17 March 1983.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0730 hours, 7 March 1983, without authority, failing to go at the prescribed time to his appointed place of duty.  This document also shows that the applicant requested an open hearing; a person to speak in his behalf was not requested; and that matters in defense, mitigation, and/or extenuation were not presented by the applicant to the commander.  Subsequent to the open hearing and consideration of all matters presented in defense, mitigation, and/or extenuation, the commander imposed punishment against the applicant that consisted of reduction to the grade of E-1 and 14 days extra duty.

12.  On 17 March 1983, the lieutenant colonel in command of Headquarters,
15th Battalion (Germany), approved the applicant’s separation from the U.S. Army under the provisions of Chapter 9 of Army Regulation 635-200.  The battalion commander also recommended that the applicant be furnished a General Discharge Certificate with an appropriate Separation Program Designator (SPD) due to drug abuse.  The commander further directed that the applicant not be transferred to the Individual Ready Reserve.

13.  The applicant's DD Form 214 shows that he was discharged under honorable conditions on 8 April 1983 in accordance with the provisions of Army Regulation 635-200, Chapter 9.  Item 26 (Separation Code) contains the entry, “JPC (JKK)” and Item 28 (Narrative Reason for Separation) contains the entry, “Drug Abuse Rehabilitation Failure.”  The DD Form 214 also shows that at the time of his discharge the applicant had completed 1 year, 8 months, and 11 days net active service.

14.  The applicant’s military service records show no evidence that the applicant was notified by the U.S. Army that a mistake was made regarding his discharge.

15.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) of this Army regulation provides that discharge is based on alcohol or other drug abuse such as the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug when the member is enrolled in an Alcohol and Drug Abuse Prevention and Control Program and the commander determines that further rehabilitation efforts are not practical, rendering the member a rehabilitation failure.  This determination will be made in consultation with the rehabilitation team.  The service of members discharged under this section will be characterized as honorable or under honorable conditions.
17.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the
DD Form 214 will be the Personnel Qualification Record (PQR), Officer Record Brief (ORB), enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket (MPRJ), or any other document authorized for filing in the Official Military Personnel File (OMPF).

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. 
It identifies the SPD code of “JPC (JKK)” as the appropriate codes to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, Chapter 9, based upon drug abuse rehabilitation failure.  

19.  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.

20.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the reason for his discharge should be changed because the Army made a mistake when it discharged him and that his general discharge under honorable conditions should be upgraded to an honorable discharge so that he may apply for a VA home loan.

2.  The applicant’s military service records show no evidence, and the applicant provides insufficient documentary evidence, to show that he was notified by the U.S. Army that a mistake was made regarding his discharge.

3.  The evidence of record shows that the applicant's commander notified him that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 9, with either an honorable or general discharge certificate.  The evidence of record also shows that the separation authority approved the separation action and directed the applicant be furnished a general discharge under honorable conditions.  The evidence of record further shows the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Thus, the applicant’s general discharge under honorable conditions under the provisions of Army Regulation 635-200, Chapter 9, for drug abuse rehabilitation failure, was administratively correct and in compliance with applicable regulations.  Therefore, the applicant is not entitled to a change in the authority or reason for his discharge.

4.  The evidence of record shows that during the period of service under review, the applicant demonstrated a pattern of misconduct by testing positive for THC after being enrolled in the ADAPCP and an unwillingness to alter his lifestyle to conform to U.S. Army standards.  Thus, the applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for a VA home loan or other VA benefits.

6.  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

___SAP__  ___EEM_  ___QAS_  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.




____Susan A. Powers_____
          CHAIRPERSON




INDEX

CASE ID
AR20070004689
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/10/04
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19830408
DISCHARGE AUTHORITY
AR 635-200, Chapter 9
DISCHARGE REASON
Drug Abuse Rehabilitation Failure
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.