IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009  

		DOCKET NUMBER:  AR20090003546 


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 an upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that while he admits he failed to complete the rehabilitation program he was enrolled in, he is not a rehabilitation failure.  He did not show any more positive urinalysis results.  Had he been allowed to complete his obligation, he would not have had another positive urinalysis.  Since his time in the Army, his career path has seen to it that he has had many urinalysis tests to determine his ability to perform his duties.  Never since his initial positive urinalysis (in the Army) has he tested positive for any drug; therefore, after 20 years he feels that the Army unjustly discharged him and labeled him a "rehabilitation failure" when it is obvious that he was not.  This was one incident in the course of 27 months of faithful and outstanding service to his country, that he was not afforded an opportunity to correct.  The applicant further states that the Army made a mistake when they discharged him as a "rehabilitation failure" when no empirical data can prove this statement as true.  

3.  The applicant provides no additional documentation in support of his 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, 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 military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 26 April 1985.  On 4 February 1986, he was discharged from the DEP and he enlisted in the Regular Army (RA) on    5 February 1986 in pay grade E-1, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 76Y (unit supply specialist).  He was promoted to pay grade E-3 on           1 January 1987.  

3.  On 7 August 1987, the applicant accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for the wrongful use of marijuana between 20 May 1987 and 17 June 1987.  His punishment included a reduction to pay grade E-1, a forfeiture of $329.00 pay per month for two months (suspending $329.00 pay per month for one month of said forfeiture, to be automatically remitted if not vacated before 4 October 1987), and restriction and extra duty for 45 days.  The applicant elected to appeal the punishment and submit additional matters for consideration.

4.  There is no evidence in his records of his appeal or submission of additional matters.

5.  The applicant was reduced to pay grade E-1 on 7 August 1987.  He was again advanced to pay grade E-2 on 1 December 1987.

6.  On 18 February 1988, the Clinical Director, U.S. Military Community, Mannheim, provided the applicant's command with a synopsis of the applicant's rehabilitation activities.  The Director stated that the applicant had been command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for a positive urinalysis for marijuana.  He was enrolled in Track II of the ADAPCP.  After three group sessions the applicant requested to enter Track III because he could not stop using marijuana and he was using it daily.  The applicant reported that he "waited out" the past two urinalyses because he thought he would come up positive for marijuana.  Upon entry in the program, the applicant disclosed that he had continued to use drugs since the second rehabilitation team meeting and had used marijuana and heroin the weekend before admission.  The applicant was discharged from Track III on      25 January 1988 as the Track III counselor indicated that the applicant failed to progress in treatment, he had requested to be discharged and to discontinue all treatment, and his poor attitude was impeding other Track III patients.  The applicant was discharged from the program on 25 January 1988 and identified as a rehabilitation failure.  The Director also stated that a rehabilitative team meeting was held on 11 February 1988 and the applicant was disenrolled from the ADAPCP as a rehabilitation failure.  

7.  On 11 April 1988, the applicant's company commander advised the applicant that he was initiating his separation pursuant to the provisions of Chapter 9, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for rehabilitation failure.  The company commander also advised the applicant that such a separation could result in a characterization of service of under other than honorable conditions and as a result of the issuance of such a discharge he would not be eligible for payment of accrued leave, transportation of dependents and household goods, wearing of the military uniform or admission to the Soldier's home and may not be eligible for death benefits.  However, if his conduct is sufficiently meritorious, he may receive an honorable or general, under honorable conditions discharge, which will entitle him to all his Veterans Administration (VA) benefits.  The applicant acknowledged and concurred with the counseling on the same day.

8.  On 12 April 1988, the applicant's company commander notified him of his intent to separate him for rehabilitative failure.  The company commander stated the reasons for the proposed action were:  (1) the applicant had been command referred to the ADAPCP for a positive urinalysis for marijuana, (2) he was initially enrolled in Track II and while enrolled in Track II he admittedly continued to use illegal drugs.  He voluntarily requested to be enrolled in Track III, and (3) he then requested to be discharged and to discontinue all treatment.  The company commander recommended the applicant receive a General Discharge Certificate.

9.  On 12 April 1988, the applicant, after consulting with counsel, acknowledged receipt of the proposed action to separate him under the provisions of Army Regulation 635-200, chapter 9 for rehabilitation failure.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge were issued to him.  He waived his rights to have his case heard by an administrative separation board and elected to submit a statement in his own behalf.

10.  In his undated statement, the applicant stated that he was under proceedings to remove him from active service and he would like to stay on active duty until his expiration of term of service (ETS) in February 1989.  He also stated that since being disenrolled from Track III rehabilitation he had tested negative on subsequent urinalyses.  He has had an outstanding duty performance record.  On several occasions he had taken supply rooms over for short periods of time and had performed those jobs that were regularly reserved for individuals in pay grades E-5 and E-6, that included maintaining and accounting for all the property in the company.  In his statement, the applicant requested that his duty performance and military knowledge be considered and that the type of discharge he was being recommended for also be reconsidered.  He further stated that there was nothing in his performance records to deem anything other than an honorable discharge.  He was a stellar Soldier who messed up and was asking to be discharged according to his performance rather than according to the few mistakes that he had made.

11.  On 2 May 1988, the applicant's company commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 9, paragraph 9-2, prior to his ETS.  

12.  On 4 May 1988, the appropriate separation authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.  It was recommended the applicant not be transferred to the Individual Ready Reserve.

13.  Accordingly, on 26 May 1988 the applicant was discharged from active duty, in pay grade E-2, under the provisions of Army Regulation 635-200, chapter 9, by reason of Drug Abuse Rehabilitation Failure, with a general, under honorable conditions discharge.  He was credited with 2 years, 3 months, and 22 days of net active service.

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

15.  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 the Army's 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.  The individual could be issued an honorable or general, under honorable conditions discharge.

16.  Army Regulation 635-200, paragraph 3-7a, further provided 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 contentions have been noted and found to be without merit.

2.  The evidence of record shows the applicant was placed in the ADAPCP in September 1987.  While in the program, he disclosed that he had continued to use drugs and had used drugs the weekend before his admission.  He requested to be discharged and to discontinue all treatment.  He was declared a rehabilitation failure on 25 January 1988 and disenrolled from the program on 11 February 1988.  

3.  The applicant contended at the time of his discharge and with his current submission that he was not a rehabilitation failure.  However, the evidence shows his Track III counselor indicated the applicant had failed to progress in treatment and his poor attitude was impeding other Track III patients.  He was properly separated for rehabilitation failure and he has submitted neither probative evidence nor a convincing argument in support of his request.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090003546



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ABCMR Record of Proceedings (cont)                                         AR20090003546


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