IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011874 


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, that the character and reason for his discharge be upgraded.   

2.  The applicant states, in effect, his discharge has had a lasting effect in his personal and professional life for the past 23 years.  He claims that since his discharge, he has lived a productive, non-criminal lifestyle filled with pride for his military service.  He claims that the punishment has more than served its purpose. 

3.  The applicant provides no documentary evidence 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 record shows he enlisted in the Regular Army on 
20 September 1983.  He was trained in and awarded military occupational specialty (MOS) 57H (Cargo Specialist).  

3.  The applicant's record shows that during his active duty tenure he earned the Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  

4.  The applicant's record shows that he was promoted to specialist four (SP4) on 1 February 1985 and that this is the highest rank he attained and served in while on active duty.  

5.  The applicant's disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 24 June 1985, for wrongfully using marijuana between on or about 8 April and on or about 7 May 1985.  His punishment for this offense was a reduction to private first class (PFC), a forfeiture of $168.00 (suspended), and
14 days of extra duty and restriction.  

6.  On 22 July 1985, as a result of a positive urinalysis for THC (marijuana) the applicant was referred to the Fort Eustis, Virginia Community Counseling Center (CCC).  He was diagnosed as a cannabis and alcohol abuser and was enrolled in Track II of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  

7.  On 9 September 1985, while enrolled in the ADAPCP, the applicant tested positive for THC on a urinalysis.    

8.  On 16 October 1985, the CCC/ADAPCP Clinical Director notified the applicant's chain of command that the applicant was considered a rehabilitation failure by the Fort Eustis CCC staff and he recommended the applicant be expeditiously discharged  in accordance with the applicable regulation.  The CCC director stated that after being enrolled in Track II of the ADAPCP and agreeing to a treatment program that required abstinence from all mood altering drugs, the applicant tested positive for THC on a 9 September 1985 urinalysis and his continued use of cannabis was a major problem.  He finally stated that the applicant was drug dependent.  

9.  On 7 November 1985, his unit commander notified the applicant that action was being initiated to separate the applicant under the provisions of chapter 9, Army Regulation 635-200, and that a general, under honorable conditions discharge (GD) was being recommended.  

10.  In his separation action notification to the applicant, the unit commander cited the applicant's inability to voluntarily control his personal abuse of drugs and alcohol and his failure to successfully complete the Fort Eustis CCC ADAPCP as his reasons for taking the action. 

11.  On 8 November 1985, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation and its effects, the rights available to him and the effect of a waiver of those rights.  Subsequent to receiving this legal counsel, the applicant elected to submit a statement in his own behalf and declined treatment at a Veterans Administration (VA) medical center.  

12.  On 15 November 1985, the separation authority, after considering all the evidence, recommendations, and as a result of the applicant's recalcitrance toward sincere rehabilitation, directed the applicant be eliminated from service for personal abuse of drugs and alcohol in accordance with chapter 9, Army Regulation 635-200 and that he be issued a GD.  On 25 November 1985, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of PFC and had completed a total of 2 years, 2 months, and 6 days of active military service at the time of his discharge.  

13.  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.   

14.  Army Regulation 635-200 (Personnel Separations) 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.

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’s contention that the character and reason for his discharge should be upgraded because he has lived with the punishment for a long time and because he has been productive citizen since his discharge was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms the unit commander’s decision to separate the applicant was taken only after the Fort Eustis CCC Clinical Director and his staff concluded the applicant was a rehabilitation failure.  

3.  The applicant’s record confirms the highest rank he attained while serving on active duty was SP4 and that his reduction to PFC was the result of his acceptance of NJP for using illegal drugs.  His record documents no act of valor or significant achievement and his post-service conduct alone is not a sufficient basis to support an upgrade of the character and reason for his discharge. 

4.  The evidence of record further confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulatory were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s abuse of drugs and his unwillingness to rehabilitate clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, it is concluded that his discharge accurately reflects his overall record of service and it would not be appropriate to upgrade his discharge or to change the reason for his separation at this late date.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090011874



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ABCMR Record of Proceedings (cont)                                         AR20090011874



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