IN THE CASE OF:	 

		BOARD DATE:	9 September 2009    

		DOCKET NUMBER:  AR20090005488 


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 he never used illegal drugs.

3.  The applicant provides a self-authored statement 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, 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 record shows he enlisted in the Regular Army and entered active duty on 14 January 1980.

3.  On 29 August 1980, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go to at the time prescribed to his appointed place of duty and for failure to maintain physical accountability of his weapon.  On 4 March 1981, he was punished under Article 15 of the UCMJ for failure to go at the time prescribed to his appointed place of duty on two different occasions.  On 25 February 1982, he was punished under Article 15 of the UCMJ for wrongfully possessing 1 gram, more or less, of marijuana in the hashish form.

4.  On 26 March 1982, the applicant was referred to the Alcohol and Drug Abuses Prevention and Control Program (ADAPCP).

5.  On 29 March 1982, the applicant was recommended for a bar to reenlistment. On 30 March 1982, it was approved.  The applicant did not appeal the bar to reenlistment.

6.  On 21 July 1982, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of chapter 
9-2, Army Regulation 635-200 (Personnel Separations) with a recommendation that he receive a general discharge under honorable conditions.  The reason for the proposed action was the applicant’s continued use of a controlled substance (hashish) and his being declared a rehabilitation failure.  The applicant did not desire that military counsel for consultation be appointed to assist him.

7.  On 22 July 1982, the separation authority approved the applicant's discharge and directed that he be issued a General Discharge Certificate.  

8.  On 4 August 1982, the applicant was discharged under the provisions of chapter 9 of Army Regulation 635-200 by reason of drug abuse (exemption policy) rehabilitation failure.  He was credited with completing 2 years, 6 months, and 21 days of active duty service.  This form also shows that he received an under honorable conditions characterization of service.  

9.  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.

10.  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.

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

2.  The applicant, by violating the Army's policy not to abuse alcohol and illegal drugs, compromised the special trust and confidence placed in him as a Soldier.  
The applicant had the duty to support and abide by the Army's alcohol and drug abuse policies.  By abusing alcohol, the applicant knowingly risked his military career.

3.  The available evidence shows the command attempted to assist the applicant by providing him alcohol/drug counseling and by the imposition of NJP.  The applicant was enrolled in the ADAPCP and he was aware of the consequences of any action which would demonstrate an inability or refusal to participate in, cooperate in, or successfully complete the program.  The applicant failed to respond appropriately to these efforts.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.


6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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)                                         AR20090005488



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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