IN THE CASE OF:	

		BOARD DATE:	23 February 2010  

		DOCKET NUMBER:  AR20090015002 


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 his discharge administrative upgrade after 6 months did not occur.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two supporting character reference letters.

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 16 November 1983.

3.  The applicant provided two supporting letters from friends that attest to his outstanding personality and good work ethics.  One author stated that the applicant took pride in all his accomplishments.  He said the applicant was a clean, upstanding, energetic person who was very family-oriented.  The other author said that even in difficult times, the applicant rarely has a bad attitude and manages to keep a smile on his face.

4.  On 30 April 1985, nonjudicial punishment (NJP) was imposed against the applicant for wrongfully using marihuana.  His punishment consisted of reduction to the grade of E-1, a forfeiture of $300.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.

5.  On 18 July 1985, the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) counselor provided a summary of the applicant's rehabilitation activities.  The counselor said that the applicant was referred to ADAPCP on 26 March 1986 for cannabis abuse that was detected through urinalysis testing.  The applicant was enrolled in Track II and attended individual counseling that focused on his feelings associated with the Army, marital separation, work improvement, and drug abstinence.  The applicant had a second positive urinalysis for cannabis on 26 June 1985.

6.  On 19 July 1985, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, for alcohol/drug abuse rehabilitation failure.

7.  On 19 July 1985, the applicant acknowledged receipt of the discharge action. The applicant was advised of his rights and that legal counsel would be available to him upon his request.  The applicant completed a statement indicating he did not desire medical treatment at a Veterans Administration Medical Center and he elected not to submit a statement in his own behalf.

8.  On 30 July 1985, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation and its effects and the rights available to him, the applicant waived his rights.

9.  On 1 August 1985, the applicant underwent a medical evaluation in which he was found medically qualified for separation.

10. On 19 August 1985, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 9, paragraph 9-2, and directed that a General Discharge Certificate be issued.

11.  The applicant's DD Form 214 shows that he was issued a general discharge characterized as under honorable conditions on 19 September 1985.  The applicant had completed 1 year, 10 months, and 4 days of creditable active service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant claims, in effect, that his discharge should have been upgraded after 6 months.  However, there are no provisions in the Army regulations for automatically upgrading a discharge after a period of time has elapsed.  The applicant must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

2.  The applicant's post-service conduct is noteworthy, as evidenced by the supporting letters provided.  However, this alone is not sufficiently mitigating to support an upgrade of his discharge.  The applicant's record of misconduct, as evidenced by his NJP record and his failure to take advantage of the ADAPCP rehabilitation opportunity presented him, diminished the overall quality of his service below that meriting a fully honorable discharge.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulations 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.

4.  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)                                         AR20090015002



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ABCMR Record of Proceedings (cont)                                         AR20090015002



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