IN THE CASE OF:
BOARD DATE: 30 September 2008
DOCKET NUMBER: AR20080005611
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 his general discharge be upgraded to honorable.
2. The applicant states it is his understanding that, after a period of time, he can request and receive an honorable discharge. He states he has suffered enough because he cannot find gainful employment with his general discharge.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant served in the Regular Army from 23 September 1980 through 13 January 1984, a period of 3 years, 3 months, and 21 days. Trained as a cannon crewmember, he served at Fort Sill, OK and in Germany.
3. While in Germany, the applicant was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) because of a positive urinalysis for marijuana. He successfully completed the program and was released on 27 May 1983.
4. On 15 December 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for, on or about 21 November 1983 knowingly and wrongfully using marijuana. His punishment included reduction from specialist (SPC/E-4) to private (PVT/E-2), a forfeited $300 pay per month for 1 month, and 45 days of restriction and extra duty.
5. The applicant was re-enrolled in the ADAPCP following his November 1983 positive urinalysis. On 23 December 1983, the ADAPCP Clinical Director recommended the applicant be eliminated from the Army as a rehabilitation failure.
6. The applicant's commander notified the applicant of his intent to discharge him as a drug rehabilitation failure under the provisions of chapter 9, Army Regulation 635-200. He acknowledged notification on the same date. Also on the same date, the commander requested the applicant be discharged. The approval authority approved the applicant's discharge on 27 December 1983 and directed a general discharge.
7. On 13 January 1983, the applicant was discharged as a drug abuse rehabilitation failure under the provisions of chapter 9, AR 635-200. He was given a general discharge.
8. 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 soldiers 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 requests a discharge upgrade to honorable. He intimates that, after a period of time, he could request and receive such an upgrade.
2. The applicant abused illegal drugs on multiple occasions. He was command-referred to the ADAPCP and completed the program, only to re-use marijuana and once again test positive for that drug on a unit urinalysis. He was declared a rehabilitation failure.
3. The applicants discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service, and in keeping with the situation for which he was eliminated from the Army.
4. The Army does not have a program to automatically upgrade discharges after the passage of a certain amount of time. Each request for an upgrade is reviewed individually and decisions are made based upon the merits of each 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) AR20080005611
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