RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070012869 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Eric N. Anderson

Member

Mr. David K. Haasenritter

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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states, in effect, that he was young and immature at the time he entered the service.  He has been discharged over 24 years, has a family, and is seeking better employment opportunities.  He would like his family to be proud of his service.

3.  The applicant did not provide any additional documentary evidence in support of this application. 

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 records show that he enlisted in the Regular Army on 16 March 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76V (Material Storage/Handler Specialist).  The highest rank he attained during his military service was private/E-2.

3.  The applicant's records show that he served in Germany during the period 22 July 1982 through 7 October 1983.  He was initially assigned to Support Troop, 11th Armored Cavalry Regiment, as a Material and Storage Handler; however, in April 1983, he was reassigned as a rehabilitative transfer to the 15th Maintenance Company, 18th Maintenance Battalion. 

4.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order of a superior noncommissioned officer (NCO) on 9 March 1983 and again on 11 March 1983; for failure to go on 11 March 1983; and on 11 March 1983 for disrespectful language towards a superior NCO. 

5.  On 19 August 1983, the Alcohol and Drug Control Officer (ADCO) prepared a written summary of the applicant's drug rehabilitation treatment plan.  The ADCO summary shows that the applicant was referred due to two drug related incidents: The first incident involved possession of hashish on 6 October 1982 and a positive urinalysis for marijuana on 29 December 1982.  While in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), the applicant was apprehended by military police customs agents for possessing 3 grams of marijuana on 11 July 1983.  The ADCO states that the applicant admitted he made a grave error in judgment and that he understood the seriousness of this incident.  On 18 July 1983, the ADAPCP treatment team and the applicant's chain of command met to discuss the applicant's status in the ADAPCP.  At the conclusion of the meeting, it was determined the applicant would be declared a rehabilitation failure. 

6.  On 26 August 1983, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 9 of Army Regulation 635-200 (Personnel Separations), for failure of the ADAPCP.  The commander's reasons for separation were that on 6 October 1982 the applicant was referred to the ADAPCP for drug abuse, on 29 December 1982 he tested positive for illegal drugs during a urinalysis test, and on 11 July 1983 the applicant was apprehended by the 42nd Military Police (Customs) with a controlled substance.  He further stated that the applicant had shown an apathetic attitude and lacked motivation.  

7.  On 26 September 1983, the applicant's commander recommended his discharge from the Army under the provisions of Army Regulation 635-200, Chapter 9, for drug rehabilitation failure.  

8.  On 9 September 1983, the applicant consulted with legal counsel and was advised of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  He subsequently acknowledged notification by his commander of his pending separation action and elected to submit a statement on his behalf.  He further requested medical treatment at a Veterans Affairs Medical Treatment Center.

9.  On 26 September 1983, the separation authority approved the applicant's discharge and directed he be furnished a General Discharge Certificate.  On 14 October 1983, the applicant was discharged accordingly.  The applicant was 21 years old at that time.  The DD Form 214 he was issued at the time confirms that he was discharged in accordance with chapter 9 of Army Regulation 
635-200 with an under honorable conditions characterization of service by reason of "Drug Abuse-Rehabilitation Failure."  This form shows that the applicant had completed 1 year, 6 months, and 29 days of creditable military service.

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

11.  Army Regulation 635-200 (Enlisted Separations) 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 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.  The regulation provided for issuance of an honorable or general discharge.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded because he was young and immature at the time he enlisted.  He was processed for separation less than two years later.  He further contends that it has been over 24 years from the date of his discharge.  He contends he is a family man seeking better employment opportunities to provide for his family.  He would like to be proud of his service to his country.  Therefore, he requests that his discharge be upgraded.

2.  The applicant was enrolled in the ADAPCP and failed to comply with treatment plans and goals, continued to abuse drugs, and was determined to be a rehabilitative failure.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

3.  The applicant's separation packet shows he understood the basis for his discharge.  He accepted military counsel and elected to submit a statement in his own behalf.  This clearly shows that the applicant was aware of the basis for his discharge and that he did contest it at the time.  The applicant had an opportunity to apply to the ADRB within its 15-year statue of limitations for the ADRB to consider upgrading the discharge and his characterization of service.  He did not apply to the ADRB.  

4.  The applicant's contentions that his youth and immaturity contributed to his drug abuse and rehabilitation failure are not accepted.  The applicant was 
21 years old at the time he was separated. 

5.  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 the aforementioned requirement.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JI        _  __ENA__  __DKH__  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.



____John Infante    _____
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080131
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.