RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070014783 


	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 T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea M. Nuppenau

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 under honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that when he was discharged under Chapter 9, he was told he would receive an Honorable Discharge. 

3.  The applicant did not provide supporting documents with his 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 Army Reserve on 19 January 1983 for a period of 6 years.  He completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 63H (Wheel Vehicle Repairman).  He enlisted in the Regular Army on 3 January 1985.

3.  The applicant's records show that he served in Germany during the period 22 January 1985 to 28 November 1985.  He was assigned to the 88th Maintenance Company as a wheeled vehicle repairman. 

4.  The applicant's records reveal the following history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ): on 17 July 1985, for failure to go on 28 June 1985 and again on 3 July 1985; on 25 October 1985, for being absent without leave (AWOL) and missing formation; and, on 29 October 1985, for wrongful possession and use of marihuana.   

5.  The applicant's records reveal a history of 12 separate counseling sessions that were documented on DA Forms 4858 (General Counseling Forms) from 16 August 1985 through 8 October 1985 for missing unit formations and failure to go to his appointed place of duty.  The counseling documents also show a history of the applicant calling in late to work for various personal reasons, then not reporting to work at the mutually agreed to time and remaining absent from work after his appointments at the Community Counseling Center.

6.  On 22 October 1985, the Clinical Director of the Hanau South Community Counseling Center prepared a written synopsis of the applicant's alcohol rehabilitation treatment plan.  The Clinical Director's synopsis shows that the applicant referred himself to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 18 July 1985 for alcohol abuse.  He was enrolled in Track II Rehabilitation and participated in 12 hours of alcohol abuse awareness training and 6 sessions of individual counseling.  He also reported the applicant tested positive for tetrahydrocannabinol (THC), the psychoactive compound found in marijuana.  He stated that the applicant's progress was inconsistent and that the company commander declared the applicant a rehabilitative failure.  The Clinical Director stated that the applicant's potential for successful rehabilitation was poor.  

7.  On 29 October 1985, a mental status evaluation showed that the applicant was normal, fully alert, fully oriented and that his thinking process was clear.  The medical examiner's opinion was that the applicant had the mental capacity to understand and participate in the separation proceedings, that he was mentally responsible, and that he met the retention requirements for immediate reenlistment or separation.  

8.  On 5 November 1985, 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 a positive urinalysis and alcohol abuse.  

9.  On 6 November 1985, 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 not to submit a statement on his behalf.  He further did not request treatment at a Veterans Affairs Medical Treatment Center.  He also acknowledged that he could apply to the Army Discharge Review Board or the Army Board of Correction of Military Records to upgrade his discharge and those applications to these Boards did not imply that his discharge would be upgraded.
10.  On 7 November 1985, the applicant's commander recommended his discharge from the Army under the provisions of Army Regulation 635-200, Chapter 9, for alcohol and drug abuse rehabilitation failure.  

11.  On 15 November 1985, the separation authority approved the applicant's discharge and directed that a General Discharge Certificate would be issued upon discharge.  On 29 November 1985, the applicant was discharged accordingly.  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 10 months and 21 days of creditable military service.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enrolled in the ADAPCP as a self-referral for alcohol abuse.  He failed to comply with the treatment plan and he tested positive for marijuana while enrolled in ADAPCP.  He was declared a rehabilitation failure by his company commander, which was supported by the Clinical Director of the Community Counseling Center.

2.  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 the applicant had a history of infractions punishable under the provisions of Article 15, UCMJ and he did test positive for THC.  The applicant's service is discreditable, therefore the characterization of service is appropriate.  
3.  The applicant's separation packet shows he understood the basis for his discharge.  He consulted with counsel, but elected not even to submit a statement on his own behalf.  

4.  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.  

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.  

6.  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

__JTM_ _  __CD  _ _  __RMN__  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 T. Meixell    __
      CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080214
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.