IN THE CASE OF:	  

		BOARD DATE: 	        18 June 2009

		DOCKET NUMBER:  AR20090000306 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that his discharge was based on one isolated incident and that he served his country and unit with honor.

3.  The applicant provides no additional documentation in support of this case.

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 enlisted in the Regular Army on 10 November 1981.  He successfully completed basic combat training, advanced individual training, and he was awarded military occupational specialty 91B (Medical Specialist). 

3.  On 16 January 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order by a senior non-commissioned officer (NCO).

4.  The applicant's record reveals a disciplinary history that includes general counseling on the following dates:  

	a.  28 June 1983 for failure to be at his appointed place of duty; 
	
	b.  11 August 1983 for writing a bad check;

	c.  18 August 1983 for refusing to appear before the Soldier of the Month Board;

	d.  20 September 1983 for receiving a traffic ticket; and 

	e.  26 September 1983 for failure to be at his appointed place of duty.

5.  On 26 September 1983, the applicant was command directed to enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) at Fort Lewis, Washington, for substance abuse treatment.  He was enrolled in the Track II Program for rehabilitation purposes with a treatment plan that committed him to the following: 1) command consultation; 2) counseling/therapy: weekly or more frequently for first 30 days, 2 times a month for duration of rehabilitation; 
3) urinalysis: weekly for 30 days, then 1 time a month for duration; and 
4) marijuana information school.

6.  By memorandum dated 4 October 1983, the applicant's ADAPCP Control Officer advised the applicant's company commander that since the applicant's enrollment he refused to participate in the ADAPCP and stated that he would not stop using illicit drugs [cannabis].  The ADAPCP Control Officer further stated that the applicant was being declared a rehabilitative failure and that the applicant was being recommended for discharge in accordance with chapter 9 of Army Regulation 635-200 (Active Duty Administrative Separations).




7.  On 5 October 1983, the applicant accepted NJP under Article 15, UCMJ for knowingly and wrongfully using marijuana.

8.  On 14 October 1983, the applicant was notified by his company commander that he was being processed for separation under the provisions of chapter 9 of Army Regulation 635-200 for Alcohol or Other Drug Abuse-Rehabilitation Failure. 

9.  The applicant was further advised that he was being recommended for a general discharge under honorable conditions, due to drug abuse rehabilitation failure.  He was also advised that this action was suspended for 7 days to give the applicant the opportunity to exercise the following rights:  

   a.  "Request appointment of military counsel;
	
b.  submit a statement on his behalf; or

	c.  waive the foregoing rights in writing or by declining to reply within 7 days."

10.  On 14 October 1983, the applicant acknowledged that he was advised of the basis for his separation action under the provisions of Army Regulation 635-200. The applicant acknowledged that he was counseled by appropriate counsel and that he did not wish to have his case heard by an administrative separation board.  The applicant also indicated that he did not provide statements on his own behalf.

11.  On 3 November 1983, the applicant was discharged under the provisions of 
chapter 9, Army Regulation 635-200, for Drug Abuse-Rehabilitation Failure.  The applicant was issued a General Discharge Certificate.  Records show the applicant had completed a total of 1 year, 11 months, and 24 days of creditable active service at the time of separation with no lost time.

12.  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.  At the time of the applicant’s separation, an honorable or general discharge was authorized.  



13.  Chapter 5 of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), in pertinent part, states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander, in consultation with the ADAPCP staff, determines that further rehabilitation efforts are not practical and that rehabilitation is a failure.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge was based on one isolated incident. However, the available record shows the applicant received a general discharge under honorable conditions for drug abuse rehabilitation failure.  He received two Article 15s, he had numerous negative counseling’s and he wrongfully used marijuana while enrolled in ADAPCP.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

2.  The applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would  have jeopardized his rights. Therefore, it is concluded that the characterization of the applicant’s service was proper and equitable.

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)                                         AR20090000306



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ABCMR Record of Proceedings (cont)                                         AR20090000306



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