IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090011025 


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

2.  The applicant states, in effect, that he was four months away from his original expiration term of service (ETS) before his administrative separation.  He made a mistake after smoking marijuana at a party and he felt guilty about what he did.  So, the next day he informed his company commander of the incident and the commander had him enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) at Fort Hood, TX.

3.  The applicant further states that he was tested daily for drugs for a week and the results came back positive each time for marijuana.  The applicant states that he was not given a chance to prove his innocence.  The ADAPCP staff and his company commander may not have been aware at that time that marijuana stays in your system for 30 days.  The applicant concludes that his discharge should be upgraded and that he should be reimbursed for the 4 months he had left before his ETS.
 
4.  The applicant provides no additional documentation in support of this case.

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 enlisted in the Regular Army (RA) on 18 November 1980 and he successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 36K (Field Wireman).

3.  On 11 March 1983, the applicant was enrolled in the ADAPCP at Fort Hood for substance abuse treatment.  He was enrolled in the Track II Program for rehabilitation purposes with a treatment plan that committed him to the following: 
   
   a.  command consultation;
   
   b.  counseling/therapy:  weekly or more frequently for the first 30 days, then twice a month for the remaining rehabilitation period;
   
   c.  urinalysis:  weekly for 30 days, then once a month for the remaining rehabilitation period; and
   
   d.  marijuana information school.

4.  A DA Form 2496 (Disposition Form), dated 25 April 1983, shows the applicant's ADAPCP Control Officer advised the applicant's company commander that on 16 April 1983, the applicant failed to keep his appointment at the ADAPCP.

5.  By memorandum, dated 13 June 1983, an ADAPCP staff member advised the applicant's company commander that the applicant was submitted for periodic urine specimens that yielded positive results for cannabis on 22 March 1983,
12 April 1983, 19 April 1983, 3 May 1983, and 10 May 1983.
   
6.  By memorandum, dated 13 June 1983, the applicant's ADAPCP Clinical Director advised the applicant's company commander that upon the recommendation of the ADAPCP staff the applicant was declared a rehabilitation failure in the Fort Hood ADAPCP.  The Clinical Director further recommended that the applicant be discharge in accordance with chapter 9 of Army Regulation 635-200 (Active Duty Administrative Separations).

7.  On 14 June 1983, the applicant was notified by his company commander that he was being processed for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) chapter 9, by reason of alcohol or other drug abuse - rehabilitation failure. 

8.  The applicant was further advised that he was being recommended for a general, under honorable conditions discharge due to drug abuse rehabilitation failure.  He was also advised that this action was suspended for 3 days to give him the opportunity to exercise the following rights:  

   a.  request appointment of military counsel;

	b.  submit a statement on his behalf; and/or

	c.  waive the foregoing rights in writing or by declining to reply within 7 days."

9.  On 16 June 1983, the applicant acknowledged that he was advised of the basis for his separation action under the provisions of Army Regulation 635-200, chapter 9.  The applicant acknowledged that he was counseled by appropriate counsel and that he did not wish to have his case heard by an administrative separation board.  The applicant also indicated that he did provide statements in his own behalf.

10.  The applicant stated that he should not receive a general, under honorable conditions discharge.  He had never received an Article 15 or bad counseling.  The applicant stated that he had always performed well and knew to do his job well.  His career was being destroyed over something like this.

11.  On 11 July 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, by reason of drug abuse rehabilitation failure.  The applicant was issued a General Discharge Certificate.  Records show the applicant had completed a total of 2 years, 7 months, and 24 days of creditable active service at the time of his separation with no time lost.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 8 January 1997, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's reason for discharge was proper and equitable and that the discharge was properly characterized.

13.  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.  

14.  Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), chapter 5, in pertinent part, states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander, in consultation with the ADAPCP staff, determines that further rehabilitation efforts are not practical and that rehabilitation is a failure.

15.  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 contends that his discharge should be upgraded and he should be reimbursed for the 4 months remaining before his ETS.  However, the available record shows the applicant received a general, under honorable conditions discharge for drug abuse rehabilitation failure.  He missed one ADAPCP appointment and yielded five positive test results for cannabis for the period March 1983 through May 1983 while enrolled in the ADAPCP.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge or any time of reimbursement prior to his administration discharge.

2.  The applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would have jeopardized his rights. Therefore, it is concluded that the characterization of the applicant’s service was proper and equitable.




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)                                         AR20090011025



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ABCMR Record of Proceedings (cont)                                         AR20090011025



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