IN THE CASE OF:	  

		BOARD DATE:	  11 September 2008

		DOCKET NUMBER:  AR20080008466 


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 separation document (DD Form 214) be corrected to show he completed a total of 2 years of creditable active service for entitlement to Department of Veterans Affairs (VA) benefits.

2.  The applicant states, in effect, that the Army Discharge Review Board (ADRB) found his general, under honorable discharge (GD) improper and changed the characterization of and reason for his discharge.  However, even though these changes were made, he was not given further service credit.  He states that he is 11 days short of completing a full 2 years of creditable service necessary to qualify for VA benefits, and he now requests that his record be corrected to show that he completed a total of 2 years of service so that he can qualify for VA benefits.  

3.  The applicant provides the following documents in support of his application:  Statement in Support of Claim (VA Form 21-4138); United States Army Reserve Personnel Center (ARPERCEN) Letter, dated April 1995; Separation Document (DD Form 214); and VA Letters, dated 17 May 2005 and 26 September 2006.

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 into the Regular Army and entered active duty on 14 September 1981.  He was trained in and awarded military occupational specialty (MOS) 12F (Engineer Tracked Vehicle Crewman), and the highest rank he attained while serving on active duty was specialist four (SP4).  

3.  The applicant's record shows that during his tenure on active duty, he earned the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  

4.  The applicant's record documents no periods of unauthorized absence, and he has no record of non-judicial punishment (NJP) or court-martial.  

5.  On 17 August 1983, the applicant's unit commander referred him to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  There is no record of actual enrollment into the ADAPCP.  

6.  On 19 August 1983, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of 
Chapter 9, Army Regulation 635-200.  In his notification, the unit commander advised the applicant that if his recommendation was approved, he could receive either an honorable discharge (HD) or general, under honorable conditions discharge (GD).  He further stated that his reasons for the proposed action was that although he had told his leaders and himself (commander) that he had not used drugs, he tested positive during a unit urinalysis.  

7.  In his separation recommendation, the unit commander further stated that the applicant did not possess the potential for rehabilitation as indicated by his unreliability, untrustworthiness and general poor attitude, and that he had admitted to previous abuse.  He further stated that rehabilitation in the ADAPCP was not warranted and that he had determined the applicant to be a rehabilitation failure.


8.  On 19 August 1983, the applicant acknowledged receipt of the separation action notification.  After consulting with legal counsel and being advised of the basis of the contemplated separation action, the effects of a GD, and of his rights, he completed his election of rights.  He waived his right to representation by counsel, and he elected not to submit a statement in his own behalf.

9.  On 21 August 1983, the ADAPCP Clinical Director provided a rehabilitative determination to the applicant's commander.  She stated that the applicant had been referred to the ADAPCP after testing positive for marijuana (THC) on a urinalysis.  She stated that upon initial interview with the applicant he admitted that while on leave he had used marijuana prior to his assignment with his current unit (17th Engineer).  He denied prior drug use to his company commander.  The Clinical Director further stated that it was the company commander's policy to discharge any member under the provisions of Chapter 9 who tested positive for THC unless the individual reports such upon arrival at the unit, and that the ADAPCP staff concurred with the commander's policy.  She further stipulated that the applicant was not considered drug dependent.

10.  On 25 August 1983, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, Chapter 9, and he directed the applicant receive a GD.  On 2 September 1983, the applicant was discharged accordingly.

11.  The separation document (DD Form 214) issued to the applicant upon his discharge shows he was separated under the provisions of Chapter 9, Army Regulation 635-200, by reason of drug abuse - rehabilitation failure.  It also shows that at the time of his separation, he held the rank of SP4, and he had completed a total of 1 year, 11 months, and 19 days of creditable active duty service.  

12.  On 5 December 1994, the ADRB reviewed the applicant's case and determined that the applicant's discharge was improper.  The ADRB indicated that the governing regulation stipulated that members enrolled in the ADAPCP could be discharged if declared a rehabilitation failure.  The ADRB concluded that although the applicant was referred to the ADAPCP, he was never actually enrolled in the program and given the opportunity for rehabilitation.  

13.  The ADRB further found the unit commander's policy improperly allowed for the separation of a member as a rehabilitation failure prior to any enrollment in the program or attempts at rehabilitation, which is contrary to the requirements of the governing regulation.  As a result, the ADRB voted to change the applicant’s characterization of service to honorable and the narrative reason for his separation to "Secretarial Authority."
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 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.  Paragraph 9-1c states, in pertinent part, that when the commander determines a member who has never been enrolled in ADAPCP lacks the potential for further useful service and if found nondependent on drugs, the member will be considered for separation under the provisions of Chapter 14, by reason of misconduct - drug abuse.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Paragraph 14-12c pertains to a general commission of a serious offense.  Paragraph 14-12c (2) pertains specifically to a commission of a serious offense that is drug related. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions (UOTHC) is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general or honorable discharge if such is merited by the Soldier’s overall record.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, if a commander determines a member who has never been enrolled in ADAPCP lacks the potential for further useful service and is nondependent on drugs, he/she should consider the member be processed for separation under misconduct provisions of the separations regulation.  There are no provisions for separating a member as an ADAPCP rehabilitation failure if the member has never been enrolled in the program and given the opportunity for rehabilitation.  

2.  The evidence of record confirms the applicant was improperly discharged under the provisions of Chapter 9, Army Regulation 635-200, and that the 
ADRB corrected the characterization and reason for his discharge as a result of these errors.  However, given it is clear the applicant used illegal drugs and should have been processed for separation under the misconduct provisions of the separations regulation, it would not be appropriate to award the applicant with service credit for service not performed.
3.  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)                                         AR20080008466



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008466



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1