IN THE CASE OF:	  

		BOARD DATE:	         28 APRIL 2009

		DOCKET NUMBER:  AR20090000404 


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 the entry "drug abuse-rehabilitation failure" be removed from item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that his records were corrected and his discharge was upgraded from "general under honorable conditions" to "honorable" in 1998.  He requested a copy of his corrected DD Form 214 and found that the reason for discharge shows "drug abuse - rehabilitation failure."  Considering the correction in 1998, he feels that this narrative reason is not warranted.

3.  The applicant provides a copy of his DD Form 214; a letter from the Army Review Boards Agency, St. Louis, MO, dated 10 March 1998; and a certificate from the Army Review Boards Agency, St. Louis, MO, dated 10 March 1998.

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 28 August 1981 for a period of 4 years.  At the completion of one station unit training at Fort Benning, GA, he was awarded military occupational specialty 11B (infantryman).  His highest grade attained was private first class, E-3.

3.  On 31 August 1982, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for possession of illegal drug paraphernalia.  The punishment imposed consisted of reduction from pay grade E-3 to E-1, forfeiture of $275.00 pay for 2 months, and correctional confinement for 30 days.

4.  While on active duty, the applicant participated in the Army's drug testing program.  The specimens he submitted on 1 December 1982, 4 January 1983, and 14 February 1983 were tested by urinalysis and found to contain evidence of illegal drugs.

5.  On 26 April 1983, the applicant was referred for treatment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) based on alcohol abuse.

6.  On 19 July 1983, the applicant submitted a urine specimen as part of the ADAPCP monitoring process.  As a result, he was declared a rehabilitation failure solely on the basis of his positive urinalysis.

7.  On 28 October 1983, the unit commander notified him of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, based on drug abuse rehabilitation failure.  He was advised of his rights.  The applicant acknowledged notification of the pending separation action, consulted with military legal counsel, did not submit statements in his own behalf, and requested treatment in a Veterans Administration (VA) medical center.

8.  The separation authority approved discharge under the provisions of Army Regulation 635-200, chapter 9, with issuance of a General Discharge Certificate.

9.  On 10 November 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  He had served 2 years, 2 months, and 13 days of total active service.  He was given a separation program designator (SPD) code of "JPC" (drug rehabilitation failure).
10.  Item 28 (Narrative Reason) of the applicant's DD Form 214 shows the entry "drug abuse-rehabilitation failure."

11.  On 27 August 1997, the ABCMR corrected the applicant's records by deleting from his military personnel and medical records any and all references to the urinalyses of the specimens he submitted on 4 January 1983 and 14 February 1983 and by showing that his period of active service terminating on 10 November 1983 was characterized as honorable.

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.

13.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation shows that the SPD code "JPC" as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as "drug rehabilitation failure" and that the authority for discharge under this separation program designator is "Army Regulation 635-200, chapter 9."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for discharge is not warranted since his records were corrected and his discharge was upgraded from general under honorable conditions to honorable in 1998.

2.  The applicant is correct in that his records were corrected to upgrade his discharge to honorable.  Additionally, his records were corrected by deleting from his military personnel and medical records any and all references to the positive urinalyses of the specimens he submitted on 4 January 1983 and 14 February 1983.

3.  The urinalyses of the specimens submitted by the applicant on 1 December 1982 and on 19 July 1983 were supportable and sufficient to serve as the basis for appropriate administrative actions.

4.  The applicant was discharged for drug abuse rehabilitation failure.  His statements were reviewed carefully.  However, he has failed to show through the evidence submitted or the evidence of record that the narrative reason for separation issued to him was in error or unjust.

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.



      __________XXXX_______________
                 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)                                         AR20090000404



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ABCMR Record of Proceedings (cont)                                         AR20090000404



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