RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17April 2008
	DOCKET NUMBER:  AR20070018840 


	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. C. C. M.

Director

Ms. J. A. W.

Analyst

The following members, a quorum, were present:


Mr. T. K.

Chairperson

Mr. J. L. P.

Member

Mr. D. T.

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, under honorable conditions, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he suffered from alcohol/drug dependency disease documented by numerous Article 15s, under the Uniform Code of Military Justice (UCMJ), for drugs with no offer or treatment in part because of the lack of knowledge on addiction. 

3.  In an additional statement, the applicant states, that he joined the Army to serve his country; however, unfortunately due to a disease of addiction, he failed to be a continuously productive member.  He received numerous disciplinary actions for the use of marijuana.  He did not intend on partaking in this activity; however, this drug was readily available among the Soldiers of his company.  He feels that with some type of treatment, his Army career could have turned out much different.  He regrets that his career did not turn out better.  He was exposed to drugs at an early age so he never fully grasped what it meant to be a productive member of society until now.  

4.  He also states that he loved being a Soldier and gave 100 percent concerning being a Soldier; unfortunately, the power of addiction was much stronger.  He has recently completed 2 years of treatment with the State of Connecticut.  He further elaborated on the alumni work that he is currently involved in and his work assisting others.

5.  The applicant provides a copy of a certificate from the Drug Intervention Program 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 27 December 1985, for 4 years, with an established expiration of term of service (ETS) of 26 December 1989.  He successfully completed basic combat training and advanced individual training at Fort Sill, Oklahoma.  On completion of one station unit training (OSUT), he was awarded the military occupational specialty (MOS) 13B, Cannon Crewman.

3.  Between 31 March 1986 and 3 April 1987, the applicant received nonjudicial punishment (NJP) on four occasions under Article 15, of the UCMJ, for wrongfully using marijuana on two occasions, for being derelict in the performance of his duties, and for assault.  His punishments consisted of a reduction to pay grade E-1, a forfeitures of pay, and extra duties and restriction. 

4.  The applicant was counseled for failure to obey a lawful order of a noncommissioned officer, for poor duty performance, for his poor attitude, and for falling asleep on duty.

5.  The applicant underwent a mental status evaluation on 21 April 1987.  His mental status evaluation revealed a fully oriented alert individual, whose behavior was normal.  His mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  He possessed sufficient mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed appropriate by his command.

6.  On an unknown date, the applicant’s commander advised the applicant he was taking action to separated him from the service under the provisions of Army Regulation 635-200, chapter 13, for substance abuse and general unsatisfactory performance.

7.  On 23 April 1987, the applicant acknowledged his commander's intent to separate him from the Army.

8.  On 24 April 1987, after consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf. 

9.  On 29 April 1987, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 13, before his ETS with a general, under honorable conditions discharge. He requested that rehabilitative transfer be waived. 

10.  On 6 May 1987, the separation authority approved the waiver of rehabilitation transfer and recommendation for the applicant’s discharge and directed that he be furnished a general discharge.  He was discharged on 12 May 1987, in the pay grade of E-1.  He had a total of 1 year, 4 months, and 16 days of creditable service, with no time lost. 

11.  On 29 April 1993, the ADRB denied the applicant's petition to upgrade his discharge.

12.  The applicant provided a copy of a certificate, dated 16 May 2007, from the Drug Intervention Program/Perceptions Programs Inc (incorporated) and New Perceptions which congratulates him for successful completion of 1 year and 8 months in the Drug Intervention Program.

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharges of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for the separation of Soldiers due to their unsatisfactory performance when in the commander's judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions.

14.  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 applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation. 

2.  The type of separation directed and the reasons for that separation were appropriate considering all of the facts of the case.  There is no indication that the applicant’s request for discharge was made under coercion or duress. 

3.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The additional statement which the applicant provided was considered; however, it does not support an upgrade of his general discharge, under honorable conditions, to an honorable discharge. 

5.  The applicant claims that he suffered from alcohol/drug dependency disease documented by numerous Article 15s, under the UCMJ, for the abuse of drugs with no offer or treatment in part because of a lack of knowledge on addiction.  The evidence shows that the applicant had the opportunity to submit a statement in his own behalf but chose not to do so.  At that time, he could have provided a statement asking for assistance and treatment.  The commander requested that his rehabilitative transfer be waived.  This request was approved by the separation authority.  

6.  The applicant's certificate from the Drug Intervention Program/Perceptions Program Inc and New Perceptions which shows that he successfully completed the Drug Intervention Program which was 1 year and 8 months in duration was considered; however, it does not support an upgrade of his general discharge to an honorable discharge.  The treatment and success he has achieved comes after he was separated from the Army for the abuse of drugs and other misconduct. 

7.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JP___  ___TK___  ___DT___  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.




____      T. K.___________
          CHAIRPERSON




INDEX

CASE ID
AR20070018840
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2008
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19870512
DISCHARGE AUTHORITY
AR 635-200, chapter 13
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.