BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090007629 


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, an upgrade of his general discharge to a fully honorable discharge.

2.  The applicant states, in effect, that he is a "changed man" since leaving the service, now he has the Lord in his life.  He further states that he regrets the bad decisions he made while he was in the military and he would appreciate an upgrade of his general discharge. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces), dated 17 December 2008, 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.  Records show the applicant enlisted in the Regular Army on 9 March 1982, he completed advanced individual training (AIT), and he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).

3.  On 25 July 1984, the applicant was tested for drug use.  His records contain biochemical test results, dated 16 October 1984, which confirm he tested positive for the use of marijuana and cocaine.

4.  The applicant's records contain a DA Form 4856-R (General Counseling Form), dated 30 August 1984, and signed by his commander which shows the applicant was informed of his positive urinalysis and that he was being enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

5.  On 17 October 1984, nonjudicial punishment was imposed against the applicant for wrongful use of marijuana.  His punishment consisted of reduction to private/pay grade E1 (suspended for 90 days), 14 days of extra duty, and 14 days of restriction.

6.  On 22 October 1984, the Fort Lewis Alcohol and Drug Control Officer provided a memorandum summarizing the applicant's rehabilitation efforts.  The summary confirms the Fort Lewis ADAPCP staff initially screened the applicant on 4 September 1984 and determined he was abusing the substance cannabis.  The memorandum further states the applicant refused to comply with treatment plans and goals and he was recommended for elimination.

7.  The applicant's records contain a memorandum completed by the Commander, 3rd Battalion, 60th Infantry, Fort Lewis, Washington.  The memorandum directed the applicant's unit commander to inform him that he was barred from reenlistment.  A subsequent DA Form 4856-R shows the applicant was informed of the bar to reenlistment and his right to appeal on 6 November 1984.

8.  On 8 November 1984, the applicant was notified by his commander that he was being recommended for separation under the provisions of chapter 9, Army Regulation 635-200 (Personnel Separations).

9.  The applicant's unit commander indicated that the basis for the recommendation for separation was the applicant's refusal to comply with ADAPCP treatment plans and goals.



10.  The applicant acknowledged that he was advised of the basis for the separation action under the provisions of Army Regulation 635-200.  The applicant indicated he understood his right to counsel and that he could submit a statement in his own behalf.  He did not request treatment in a Veterans Administration Medical Center and he did not provide a statement in his own behalf.

11.  On 21 November 1984, the applicant's commander forwarded the separation recommendation and a request for a waiver of further rehabilitation to the Commander of the 3rd Battalion, 60th Infantry for approval.

12.  On 26 November 1984, the battalion commander directed that the applicant be discharged from the United States Army under the provisions of chapter 9 of Army Regulation 635-200, due to personal abuse of alcohol or other drugs and due to the impracticality of further rehabilitation efforts.  The commander further directed that the applicant be furnished a General Discharge Certificate.

13.  On 3 December 1984, the applicant was separated from active duty under the provisions of chapter 9 of Army Regulation 635-200 for drug abuse rehabilitation failure and furnished a General Discharge Certificate.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 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 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.  

16.  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 evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time and that the type of discharge directed and the reasons for separation were appropriate considering all of the evidence of case. 

2.  Further, the applicant acknowledged in his separation processing proceedings that he was advised and understood the effects of the separation and the rights available to him.  Although the applicant's post-service revelations are commendable, they are not a justifiable basis for an upgrade of his discharge.

3.  The applicant's record of service shows that nonjudicial punishment was imposed against him for possession of marijuana and that he was referred to ADAPCP where he refused to comply with treatment plans and goals.  His quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20090007629



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1