BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090016396 


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 that he was never a drug user in the military or at any time in his life.  He adds that the staff sergeant processing his discharge insisted that he would have to accept his reasoning and decision for the discharge.  The applicant states that the staff sergeant wrote his discharge as a drug rehabilitation failure that implies he was either in treatment and did not complete the treatment or he refused to participate in treatment for drug dependency.  He states that this did not occur and there is no evidence in his records of being a drug user.

3.  The applicant does not provide any additional 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 (RA) on
9 October 1980.

3.  On 3 March 1983, the applicant was counseled for coming up positive for THC [tetrahydrocannabinol] on a urinalysis that was conducted on 3 February 1983.  The counseling statement states the applicant was advised that he will be eliminated under the provisions of chapter 9.  He added that the applicant was previously enrolled in the Drug and Alcohol Program.  The counselor, a captain, signed the counseling form, followed by the applicant's signature, acknowledging he had been counseled and he understood the reason for the counseling session.  The applicant did not provide any comments in response to the counseling.

4.  Headquarters, U.S. Army Support Command, Fort Shafter, HI letter, Subject:  Rehabilitation Recommendation (applicant's name and social security number), dated 4 March 1983, from the Director, Personnel and Community Activities, stated that the applicant voluntarily entered the Alcohol and Drug Abuse Rehabilitation Program on 21 October 1982 as a result of his drinking problems.  His treatment consisted of individual counseling, urinalysis, and command consultations.  He stated that the applicant had not successfully curtailed his substance abuse as indicated by his continued drinking and positive THC urinalysis results and that he failed to demonstrate the motivation necessary to deal effectively with his drug and alcohol abuse.  He further recommended that the applicant be declared a rehabilitative failure and separated from the service under the appropriate regulations.

5.  On 28 March 1983, 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 - Enlisted Personnel), chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) for his repeated abuse of drugs and being declared a rehabilitative failure in accordance with Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP)).

6.  On 28 March 1983, 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 elected to submit a statement in his own behalf.
7.  In the applicant's statement, dated 30 March 1983, he stated that he should not be separated from the Army under chapter 9.  He explained that he voluntarily entered the ADAPCP as a self-referral because of a drinking problem, not drugs.  He stated that since he was in the ADAPCP because of a drinking problem, the 3 February 1983 positive urinalysis cannot be used as the sole basis for his discharge.  He added that the urinalysis could only be used to command refer him to the ADAPCP for marijuana abuse.

8.  On 6 April 1983, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 9 and directed that a General Discharge Certificate be issued.

9.  The applicant's DD Form 214 shows that he was issued a general, under honorable conditions discharge on 21 April 1983.  The narrative reason for separation is listed as "Drug Abuse Rehabilitation Failure."  The applicant had completed 2 years, 6 months, and 13 days of creditable active service.

10.  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.

11.  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.

12.  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 argues, in effect, that his discharge is in error because he was never a drug user in the military or at any time in his life.  However, evidence of record shows that the applicant self-referred to ADAPCP because of a drinking problem.  While in ADAPCP, he came up positive for THC and he was considered a rehabilitative failure because of his failure to curtail his substance abuse by his continued drinking and positive THC urinalysis results.

2.  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.

3.  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)                                         AR20090016396



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ABCMR Record of Proceedings (cont)                                         AR20090016396



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