IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080007017 


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 discharge be changed to an honorable discharge.

2.  The applicant states, in effect, that his DD 214 (Certificate of Release or Discharge from Active Duty) shows failure to rehabilitate.  He was never offered any rehabilitation.  He has a clean record for the last 20 years. 

3.  The applicant provides no additional documentation 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 16 January 1980.  He was trained as a Correctional Specialist, in military occupational specialty (MOS), 95C.  He was promoted to sergeant (SGT/E-5) effective 1 August 1982.

3.  On 15 December 1983, the applicant was enrolled in a rehabilitation program due to being identified as an illegal drug abuser by having a positive urinalysis result.  While enrolled in the program, he was counseled between the period of 22 December 1983 and 2 May 1984, for failing to attend his scheduled appointments, missing group counseling, and was provided command consultations and evaluations.  

4.  On 13 February 1984, the applicant was identified as a second time illegal drug abuser by virtue of a positive urinalysis test result.

5.  The chain of custody documents are unavailable for review.

6.  On 25 April 1984, the applicant was considered to be a drug rehabilitation failure. 

7.  The applicant underwent a mental status evaluation on 26 April 1984.  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 met the retention requirements of Army Regulation 40-501, chapter 3.  

8.  On 14 May 1984, the commander requested that a waiver of rehabilitative transfer be approved for the applicant.  Any further efforts to rehabilitate him were not practical.  Furthermore, his past performance indicated that he did not possess potential based upon his not meeting rehabilitation objectives.

9.  On 14 May 1984, the applicant's commander notified him of his intention to recommend him for discharge from the service under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  He cited as the basis for his recommendation, the applicant’s drug rehabilitation failure.  The applicant acknowledged receipt and elected to submit a statement in his own behalf on the same date.  The applicant was advised that the least favorable characterization of service he could receive was, general (under honorable conditions).  The applicant's statement, if submitted, is not available for the Board's review.  



10.  On 21 May 1984, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.

11.  On an unspecified date, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished a general discharge. The applicant was discharged on 25 May 1984.  He had a total of 4 years, 4 months, and 10 days of creditable service.

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

13.  The applicant's signature was affixed to item 21 (Signature of Member being Separated), of his DD Form 214, indicating he had reviewed the information shown on the form and it was complete and correct, to the best of his knowledge

14.  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 the Army's Alcohol and Drug Abuse Prevention and Control Program (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.

15.  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 evidence shows that the applicant was enrolled in a rehabilitation program on 15 December 1983 after being identified as an illegal drug abuser by having a positive urinalysis result.  While enrolled in the program, he was counseled between the period of 22 December 1983 and 2 May 1984, for failing to attend his scheduled appointments, missing group counseling, and he was provided added command consultations and evaluations.  

2.  The applicant was identified as a second time illegal drug abuser by virtue of a positive urinalysis test result.  He was considered to be a drug rehabilitation failure. 

3.  A request for waiver of a rehabilitative transfer was submitted and approved.  Separation proceedings were initiated against the applicant under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  

4.  The evidence shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure. 

5.  The applicant alleges that he was never offered any rehabilitation.  It is apparent that he was offered rehabilitation but he did not cooperate and comply with program requirements which resulted in a request being submitted by his commander for his discharge which was approved.  The commander indicated that any further efforts to rehabilitate him were not practical.  Furthermore, his past performance indicated that he did not possess potential based upon not meeting the rehabilitation objectives.

6.  The applicant states that he has been clean for the last 20 years; however, his statement was not supported with documentary evidence and in any event the statement would not be sufficient as a basis to change his general discharge to an honorable discharge.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20080007017



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ABCMR Record of Proceedings (cont)                                         AR20080007017



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