IN THE CASE OF:
BOARD DATE: 5 May 2009
DOCKET NUMBER: AR20090002213
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 under other than honorable conditions discharge be upgraded to an honorable discharge.
2. The applicant states that he felt pressured to agree to the discharge due to the Army going through a downsizing at that time and that he made a mistake that he has always regretted and would like to clear it from his past career.
3. The applicant provides a 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 applicants 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 applicants 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 29 March 1983 and upon completion of initial entry training he was awarded military occupational specialty 11B (Infantryman). He reenlisted on 13 November 1985 for the same military occupational specialty for 4 more years.
3. On 29 January 1987, non-judicial punishment was imposed against the applicant for wrongful use of marijuana. His punishment consisted of a reduction to the grade of private first class (E-3), forfeiture of $437.00 pay, 45 days of extra duty, and 45 days of restriction to the company area.
4. On 26 August 1987, the applicant was deemed to be a failure of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) by the Director of the program.
5. On 6 October 1987, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, for Drug and Alcohol Program Failure.
6. On 8 October 1987, the applicant received legal counseling in reference to the pending separation. He also acknowledged that he might encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued. He elected to submit a statement on his own behalf.
7. The applicant submitted a statement which chronologically listed all of the events that led up to his opinion as to why he should receive an honorable discharge.
8. On 14 October 1987, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.
9. Accordingly, the applicant was discharged on 29 October 1987 under the provisions of Army Regulation 635-200, chapter 9, for Alcohol and Drug Abuse Program failure with a general discharge under honorable conditions. He had served 4 years, 7 months, and 1 day 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 members 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 request that his discharge be upgraded to honorable has been carefully reviewed and found to be without merit.
2. Records show that after entering a military drug rehabilitation program, the applicant failed the program due to continued abuse of drugs, to include alcohol, while enrolled. 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 other wise flawed.
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) AR20090002213
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ABCMR Record of Proceedings (cont) AR20090002213
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