IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080005432 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded, and that the authority and narrative reason for his discharge listed on his separation document (DD Form 214) be changed.      

2.  The applicant states, in effect, that it has been over 20 years since his discharge, and he is ashamed to show his DD Form 214.  He claims that subsequent to his discharge, he became a productive hard working member of society and owned his truck and made a good living until he got sick.  He states that he believes his record should reflect an honorable discharge (HD) based on his prior enlistment and his overall record of service.  He claims to have enjoyed being in the Army; however, he simply got involved with the wrong crowd and made a mistake that he still is not sure how he became involved.  

3.  The applicant provides a New Jersey Criminal Record History and Third-Party Character Reference in support of 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 record shows he initially enlisted in the Regular Army and entered active duty on 5 June 1979.  He was trained in and awarded military occupational specialty (MOS) 64C (Motor Transport Operator), and on 
22 December 1981, he reenlisted for 3 years.  

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows he was promoted to specialist four on 5 September 1980, and that this is the highest rank he attained while serving on active duty.  It further shows that on 18 June 1982, he was reduced to private first class (PFC) for cause.  It also shows that during his active duty tenure, he earned the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle Bar.  

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  It does reveal a disciplinary history that includes an 18 June 1982, Summary Court-Martial (SCN) conviction for violating Article 134 of the Uniform Code of Military Justice (UCMJ) by wrongfully using a habit forming narcotic drug (heroin) on or about 4 May 1982.  

5.  On 8 June 1982, the applicant was command referred and enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

6.  On 26 July 1982, the applicant’s ADAPCP counselor completed a statement confirming that the since his enrollment, the applicant had failed to meet five scheduled appointments with his counselor between 20 June and 19 July 1982, and that the applicant had tested positive for opiates in a urinalysis on 23 July 1982.  The counselor indicated the applicant lacked the motivation to become and remain abstinent from substance abuse, and further rehabilitation efforts were not justified.  

7.  On 12 August 1982, the applicant’s unit commander recommended the applicant’s separation under the provisions of chapter 9, Army Regulation 
635-200, by reason of rehabilitation failure – drug abuse.  

8.  On 19 August 1982, the separation authority approved the separation action on the applicant and directed he receive a GD.  On 2 September 1982, the applicant was discharged accordingly.  The DD Form 214 he was issued at the 

time, as amended in a correction (DD Form 215) issued on 13 January 1983, shows he completed a total of 3 years, 2 months, and 28 days of creditable active military service.   

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-year statute of limitations.  

10.  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 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded to an HD and that the authority and reason for his separation listed on his DD Form 214 should be changed based on his post-service conduct and his overall record of service was carefully considered.  However, there is an insufficient evidentiary basis to support this claim.  

2.  The evidence of record confirms the unit commander’s decision to separate the applicant was only taken after evaluating the applicant and the information provided by ADAPCP determined that based on his history of drug abuse, further rehabilitative attempts were not justified.    

3.  The record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulatory were met, and the rights of the applicant were fully protected throughout the separation process.  

4.  Although the applicant’s post service conduct is noteworthy, this factor alone is not sufficiently mitigating to support an upgrade of his discharge given his undistinguished record of service.  The applicant’s abuse of illegal drugs clearly diminished the quality of his service below that meriting a fully honorable discharge.  As a result, it is concluded that his discharge accurately reflects his overall record of service and it would not be appropriate to grant the requested relief in this case.  

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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



	________x_______________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005432



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ABCMR Record of Proceedings (cont)                                         AR20080005432



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