BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100007212 


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 an upgrade of his general discharge to honorable.

2.  The applicant states, in effect, he was not given any rehabilitation or help with his cocaine problem while in the Army.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

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 and entered active duty in the Regular Army (RA) on 30 December 1976.  Upon completion of training he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).
3.  The applicant continued to serve in the RA.  He completed the clerk typist and postal clerk courses, and he was awarded MOS 71L (Administrative Specialist) as his primary MOS.  He attained the rank of staff sergeant/pay grade E-6 on 
1 June 1984.

4.  On 11 December 1985, the applicant's commander referred him to the Community Counseling Center (CCC) for medical evaluation based on a laboratory positive test for cocaine and amphetamines following a command directed urine testing.  On 18 December 1985, it was determined that Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) services were not required; however, a rehabilitation team meeting was scheduled to discuss the results of the applicant's initial screening interview and recommendations.

5.  On 29 January 1986, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using a schedule II controlled substance (cocaine) and a controlled substance (amphetamine) on 8 November 1985:

   a.  His punishment consisted of reduction to pay grade E-5 and a forfeiture of $624.00 pay for 2 months (with the last month suspended for 90 days).

   b.  The applicant appealed the NJP and submitted additional matters to the commander.  He challenged the validity of the laboratory report and asserted the punishment was excessive.  On 4 February 1986, the applicant's appeal was denied.

6.  On 15 January 1986, the applicant's commander notified the applicant that she was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), based on commission of a serious offense (abuse of illegal drugs).  The commander cited that the applicant had a positive laboratory test following a command directed urine testing.  The applicant was advised of his rights and of the separation procedures involved.

7.  On 15 January 1986, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights:

   a.  He acknowledged that military legal counsel for consultation was available to assist him.
   
   b.  He elected not to submit statements in his own behalf.
   
   c.  He requested representation by counsel, consideration of his case by a board of officers, and personal appearance before a board of officers.

   d.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He was also advised that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   e.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   f.  The applicant placed his signature on the document.

8.  The company commander and group commander recommended the applicant be retained on active duty based on his past performance and the medical evaluation.

9.  The separation authority reviewed the applicant's separation packet and, on
9 April 1986, directed that the applicant appear before a board of officers to determine if he should be separated prior to his separation date.

10.  On 23 May 1986, a board of officers convened:

   a.  The applicant did not testify on his own behalf.

   b.  Sergeant Major H------ spoke on the applicant's behalf.  His testimony indicates that the applicant did not give an outright admission to the use of drugs nor did he deny the use of drugs.
   
   c.  Sergeant Leslie D. L--, CCC Counselor, testified that the applicant denied the use of drugs when he was interviewed at the CCC office.

   d.  The board found the applicant did use illegal drugs.  It also found the applicant had the potential for rehabilitation and further service based on his past performance and continuous outstanding effort since the incident.
   e.  The board recommended that the applicant be separated with a general discharge under honorable conditions and that the separation be suspended for a period of 4 months to allow for an evaluation of his rehabilitation success.

11.  On 2 June 1986, the separation authority approved the applicant's separation action and directed that the applicant be issued a General Discharge Certificate.

12.  The applicant's DD Form 214 shows he was discharged on 4 June 1986 under the provisions of Army Regulation 635-200, paragraph 14-12d, for misconduct based on abuse of illegal drugs with a general discharge:

   a.  At the time he had completed 9 years, 5 months, and 5 days of net active service this period.

   b.  Item 18 (Remarks), in pertinent part, shows the applicant had two prior periods of service from 30 December 1976 to 28 August 1979 and from
29 August 1979 to 6 June 1982.  

13.  On 30 October 1998, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the ADRB requesting an upgrade of his general discharge to a fully honorable discharge.  On 6 January 1999, the ADRB determined the applicant's discharge was proper and equitable and denied his request.

14.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel:

   a.  Chapter 14 deals with the separation of enlisted Soldiers for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.
   
   b.  Chapter 3, 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 contends that his general discharge should be upgraded to honorable.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The evidence of record shows that during the applicant's period of military service under review he used illegal drugs, tested positive on a urinalysis test for cocaine and amphetamines, and he was referred to the CCC for evaluation.  The applicant denied using drugs and challenged the validity of the laboratory report concerning his urinalysis test results.  

4.  The applicant also contends he was not given any help or rehabilitation opportunities to overcome his drug problem; however, the available evidence shows the applicant refused to admit that he had a drug problem and he never asked for help or rehabilitation.

5.  In view of the foregoing, and based on the reason for the applicant's discharge, the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20100007212



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)