IN THE CASE OF:	 

		BOARD DATE:	      30 April 2009

		DOCKET NUMBER:  AR20090001755 

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, upgrade of his discharge.

2.  The applicant states, in effect, that he thought his discharge would change automatically after six months and that he never checked the status.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application 


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, and 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 entered the U.S. Army on active duty status on 14 September, 1983 as a Wheeled Vehicle Mechanic Primary Military Occupational Specialty 63 Whiskey.

3.  The applicant tested positive for marijuana during an administrative urinalysis screening for illegal drug usage on 13 Aug 1985.

4.  The applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 19 November 1985 for help in abstaining from marijuana.  While in the program, his urine specimen was tested for marijuana on three occasions, two of which were negative.  On 13 February 1986, he gave a urine specimen which tested positive for marijuana.  The applicant’s potential for rehabilitation success was considered poor by the Clinical Director due to lack of motivation.    

5.  On 16 May 1986,  the applicant was notified by his Company Commander that he was being recommended for elimination from the Army under the provision of Army Regulation 635-200 (Personnel Separations), chapter 9 , due to the inability to be rehabilitated based on the continued use of illegal drugs.

6.  The applicant received notification of the pending discharge action on 19 May 1986, and received legal counsel on the same date.  During the legal counseling, the applicant indicated that he would submit statements in his own behalf for consideration towards determining the character of service.  In his statement, the applicant requests that he receive an honorable discharge because his substance abuse problem did not affect his job performance.  The applicant also listed numerous awards and accolades he received

7.  The separation packet contained three statements from Soldiers in his Noncommissioned Officer Support Channel which recommend that he receive an honorable discharge.

8.  On 6 June 1986, the applicant was approved for discharge under the provisions of Army Regulation 635-200 chapter 9, by the separation authority with the issuance of a General Discharge Certificate (DD Form 257A) upon separation from military service. 

9.  Accordingly, the applicant was discharged on 27 June 1986 under the provisions of Army Regulation 635-200, chapter 9 for drug abuse rehabilitation failure with a general discharge under honorable conditions.  He had served 
2 years, 9 months, and 14 days of creditable active service.

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


11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 establishes policy and prescribes procedures for separating members for drug abuse rehabilitation failure.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Records show after entering a military drug rehabilitation program the applicant again failed a urinalysis test.  As a result of this failure, the applicant was appropriately discharged.

3.  There is no evidence in the available records and the applicant has not provided any evidence which shows his discharge was inaccurate, unjust, or otherwise flawed.

4.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or hers discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

5.  Based on the foregoing, there is no basis to amend the applicant’s discharge.
 
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)                                         AR20090001755



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001755



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1