RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 September 2007
	DOCKET NUMBER:  AR20070005986 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Chester A. Damian

Member

Mr. Edward E. Montgomery

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 be upgraded.

2.  The applicant states, in effect, that he was discharged from active duty with a general discharge due to a positive drug test.  As he stated to his superiors back then, at no time did he use marijuana while he was on active duty.  He was not fully aware of his rights at the time and his chain of command was threatening a court-martial unless he accepted their findings; findings that ultimately led to his dismissal with a less than honorable discharge.  He requests this information be expunged from his DD Form 214 (Certificate of Release or Discharge from Active Duty) and other associated records as the fraudulent information has done irreparable damage to his ability to obtain employment with Federal, State, and local governments.  

3.  The applicant believes that his chain of command made mistakes on two fronts:  a) he was not advised of his rights to appeal its decision.  By not appealing the decision in which he is confident he would have prevailed, the Army placed information in his records that was totally false; and b) the chain of custody that handled urine samples in the Army during the early 1980's was imperfect.  The lids on the bottles of urine were not tamper resistant, unauthorized personnel were handling the specimens, paperwork associated with the specimens was not filled out IAW (in accordance with) applicable regulations, the specimens were not stored in approved containers (his specimen was kept in an unlocked desk until shipping), and his chain of command was very selective in who got tested (mostly the Afro-American Soldiers assigned to the unit).  In today's Army, with the infractions he has enumerated, the positive result would be thrown out due to lack of compliance with established protocol.  

4.  The applicant provides a copy of his DD Form 214 in support of his request.

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's record shows he enlisted in the Regular Army on 2 September 1980, for 3 years, with an established expiration term of service (ETS) of 1 September 1983.  He successfully completed basic combat training and advanced individual training at Fort Bliss, Texas.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS) 16P, Air Defense Artillery Short Range Missile Crewman.  He was advanced to pay grade E-4 on 2 December 1981.

3.  On 11 May 1983, the applicant entered the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He was a no-show for six scheduled appointments and attended only four.  He demonstrated no constructive change in his behavior or a constructive interest in rehabilitation.  

4.  On 7 June 1983, the applicant was considered to be a rehabilitation failure for testing positive for THC (Tetrahydrocannabinol). 

5.  The chain of custody documents are unavailable for review.

6.  On 25 July 1983, the applicant was barred from reenlistment.  

7.  On 5 August 1983, the applicant's commander notified him of his intention to recommend him for discharge 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 inability to rehabilitate himself from the abuse of drugs and thus being declared a CDAAC (Community Drug and Alcohol Counseling) failure.  He was notified that he would receive an honorable or general discharge certificate and that he had the right to consult with counsel.  He acknowledged receipt and elected not to submit matters in his own behalf.  

8.  On 17 August 1983, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 9, drug abuse rehabilitation failure, prior to his ETS date.



9.  On 18 August 1983, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished a general discharge.  The applicant was discharged on 29 August 1983.  He had a total of 2 years, 11 months, and 28 days of creditable service.

10.  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.

11.  The applicant's signature was affixed to item 21 (Signature of Member being Separated), of his DD Form 214, indicating he had reviewed the information shown on the form and it was complete and correct, to the best of his knowledge.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure. 

2.  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.



3.  The applicant alleges that he was discharged from active duty due to a positive drug test.  The evidence shows he entered the ADAPCP on 11 May 1983 for his involvement with or use of drugs.  He was a no-show for six scheduled ADAPCP appointments and attended only four.  He was considered a rehabilitation failure for testing positive for THC on 7 June 1983 and was barred from reenlistment. 

4.  The applicant alleges that he stated to his superiors that at no time did he use marijuana while he was on active duty; however, the evidence shows he was enrolled in the ADAPCP and was declared a rehabilitation failure.  

5.  The applicant alleges that he was not fully aware of his rights at that time and his chain of command was threatening a court-martial unless he accepted their findings; findings that ultimately led to his dismissal with a less than honorable discharge.  However, the evidence shows he was given the right to consult with counsel and did so on 5 August 1983.  He acknowledged his rights and stated he was advised by counsel of his options and the effect of a waiver of his rights.

6.  The applicant’s request to have all information related to his drug abuse expunged from his DD Form 214 and other associated records has been noted; however, he has provided no evidence to show that this information should be expunged from his records.  He attested that his DD Form 214 was correct with no errors (by affixing his signature to his DD Form 214, on the date of his release from active duty).  

7.  The applicant alleges that this fraudulent information has done irreparable damage to his ability to obtain employment with Federal, State, and local governments.  A review of all information related to the applicant's discharge for drug abuse indicates it is not fraudulent and is based on factual information.  During this review, no fraudulent information was identified; therefore, the applicant's record should remain unchanged.

8.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

9.  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


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RTD__  ___CD___  __EM___  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.




____Richard T. Dunbar______
          CHAIRPERSON




INDEX

CASE ID
AR20070005986
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070927
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19830829
DISCHARGE AUTHORITY
AR635-200, chap 9
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.