IN THE CASE OF:	

		BOARD DATE:	       25 JUNE 2009

		DOCKET NUMBER:  AR20090004136 


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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states that when he was offered the discharge, he was not aware he would receive a GD.  If he had been, he would have completed his last three months of service to get his HD.   

3.  The applicant provides no additional 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 (RA) on
27 March 1986.  He was trained in and awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist), and on 1 April 1988, he was promoted to specialist (SPC)/E-4, which is the highest rank he attained and held while serving on active duty.  

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows that during his active duty tenure, he earned the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The applicant's records document no acts of valor or significant achievement.

4.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 October 1988, for wrongfully using marijuana.  His punishment for this offense was a reduction to private (PV1)/E-1, forfeiture of $335.00 per month for two months, and 45 days of extra duty and restriction.

5.  On 24 October 1988, the Bad Kissingen Community Counseling Center Clinical Director completed a synopsis of the applicant's Alcohol and Drug Abuse Prevention Program (ADAPCP) rehabilitation activities.  He stated that the applicant was enrolled in program on 4 October 1988, based on receipt of a positive urinalysis test result for THC (cannabis).  He further indicated that the applicant had previously been enrolled in the ADAPCP on 23 February 1987, and was released on 21 September 1987, after successfully completing the program. The clinical director further indicated that the applicant's potential for successful rehabilitation was poor based on his being a second referral. 

6.  The applicant was informed by his unit commander that action was being initiated to separate him under the provisions of chapter 9, Army Regulation 
635-200 (Personnel Separations – Enlisted Separations), for being a drug and alcohol rehabilitation failure.  The commander stated that his reasons for taking the action were the applicant's reentry into the ADAPCP as a result of a positive urinalysis for THC and his poor potential for rehabilitation.  The commander also notified the applicant that he was recommending the applicant receive a GD.  

7.  On 29 November 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him and the effect of a waiver of those rights.  The applicant elected not to submit a statement in his own behalf and acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life based on receiving a GD.  
8.  On 5 December 1988, the separation authority approved the separation action on the applicant and directed he receive a GD.  On 20 December 1988, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 2 years, 6 months, and 24 days of creditable active military service.   

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-year statute of limitations.  

10.  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. 

11.  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 his discharge should be upgraded to an HD because had he known at the time that he was receiving a GD he would have stayed in and completed his enlistment and received an HD was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the unit commander’s decision to separate the applicant was only taken after the Community Counseling Center Clinical Director determined the applicant's chance for successful rehabilitation was poor given his previous ADAPCP enrollment history.  

3.  Contrary to the assertion of the applicant that he was not aware he would receive a GD, the separation packet on file clearly shows the applicant was informed by his commander that a GD was being recommended and that he acknowledged receiving legal counsel regarding the impact of receiving a GD. 

4.  The record 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 illegal drugs clearly diminished the 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 grant the applicant's requested relief in this case.  

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.



      ___________XXX____________
               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)                                         AR20090004136



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ABCMR Record of Proceedings (cont)                                         AR20090004136



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