IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100009209 


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 correction of his records by changing the character of his service from honorable to uncharacterized.

2.  The applicant states he never had marijuana in his possession, did not have an unauthorized absence from his place of duty on 16 February 1979, did not have a positive urinalysis test, and was never enrolled in any Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) rehabilitation classes.

3.  The applicant provides copies of documents from his administrative separation packet and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 in the Colorado Army National Guard (ARNG) for a period of 6 years on 28 June 1976.

3.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant entered active duty for training on 20 July 1976, was honorably released from training on 11 October 1976, and was returned to the control of his ARNG unit.  At the time he had completed 2 months and 22 days of net active service and 22 days of prior inactive service.  Item 27 (Remarks) shows he completed training for military occupational specialty 13B1O (Field Artillery Crewman).

4.  Headquarters, Sixth U.S. Army, Presidio of San Francisco, CA, 
Orders 157-324, dated 14 August 1978, ordered the applicant to involuntary active duty on 2 October 1978 for a period of 21 months and 8 days with assignment to Headquarters and Headquarters Detachment, 21st Replacement Battalion, Germany.

5.  On 13 February 1979, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully having in his possession 1 gram, more or less, of marijuana in the hashish form on or about 16 January 1979.

	a.  His punishment consisted of reduction to private/E-1 (suspended until 13 April 1979), forfeiture of $100.00 pay (suspended until 13 April 1979), and 14 days of extra duty (7 days suspended until 13 April 1979).

	b.  On 20 February 1979, the applicant indicated with his initials and signature that he did not appeal the NJP.

6.  On 17 March 1979, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 16 February 1979.

	a.  His punishment consisted of reduction to private/E-1 (suspended until 16 May 1979), forfeiture of $97.00 pay ($50.00 suspended until 16 May 1979), and 7 days of extra duty (suspended until 16 May 1979).

	b.  On 2 April 1979, the applicant indicated with his initials and signature that he did not appeal the NJP.

7.  On 7 September 1979, the applicant received NJP under Article 15, UCMJ, for wrongfully selling a habit-forming narcotic drug (three Mandrax tablets) on 4 July 1979.

	a.  His punishment consisted of reduction to private/E-1, forfeiture of $170.00 pay for 2 months, 30 days of restriction, and 30 days of extra duty.

	b.  On 17 September 1979, the applicant indicated with his signature that he did not appeal the NJP.

8.  A U.S. Army Europe Form 113-7-R (ADAPCP Progress Report), dated 13 August 1979, along with four DA Forms 4465 (ADAPCP Military Client Intake and Follow-Up Record), show the applicant was mandatorily referred to ADAPCP on 18 January 1979.

	a.  The applicant participated in counseling and command consultation sessions from 22 January 1979 through 8 August 1979.  His active rehabilitation program was started on 25 January 1979 and ended on 26 March 1979.  His counseling period was from 25 January 1979 to 15 August 1979 (nine counseling sessions were scheduled and the applicant missed three sessions) and he showed no desire to be rehabilitated.

	b.  The ADAPCP counselor evaluated the applicant's rehabilitation potential as poor.  She stated "[the applicant] has expressed the desire to get out of the Army, being aware that drug and alcohol abuse would precipitate his elimination, and he has worked hard at being a drug abuser."  The ADAPCP counselor recommended that the applicant be declared a rehabilitative failure and eliminated from the U.S. Army.

	c.  A DA Form 2496 (Disposition Form) shows the applicant's commander declared him a rehabilitative failure in the ADAPCP on 16 August 1979.

9.  On 5 September 1979, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9 (Separation for Alcohol or Other Drug Abuse), with an Honorable Discharge Certificate.  The reasons for the proposed action were based on the applicant's continued incidents of alcohol and drug abuse.  The commander's separation action also shows the applicant:

* was command-referred to ADAPCP on 18 January 1979
* continued to indulge in alcohol very heavily after duty hours
* continued to use hashish and had a positive urinalysis test in July 1979

10.  On 5 September 1979, the applicant acknowledged receipt of the notification of separation action.  The applicant also acknowledged that military legal counsel was available for consultation to assist him.  He indicated he did not desire that military legal counsel be appointed to assist him.  In addition, he elected not to submit statements in his own behalf for consideration and he placed his signature on the document.

11.  On 5 September 1979, the company commander recommended that the applicant be discharged from the U.S. Army.  The battalion commander also recommended approval of the separation action with an honorable discharge.

12.  On 24 September 1979, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 9, for personal abuse of drugs and alcohol.  The commander directed that the applicant be issued an Honorable Discharge Certificate.

13.  The applicant's DD Form 214 shows he was honorably discharged on 3 October 1979 under the provisions of Army Regulation 635-200, chapter 9, based on alcohol or other drug abuse.  At the time he completed 1 year and 2 days of net active service.

14.  There is no evidence the applicant applied to the Army Discharge Review Board for correction of the character of service of his discharge within its 15-year statute of limitations.

15.  In support of his application, the applicant provides copies of documents from his administrative separation packet and his DD Form 214, all of which were considered above.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 9 contained the authority and outlined the procedures for discharging Soldiers because of alcohol or other drug abuse.  A member who had been referred to ADAPCP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts were no longer practical.  Nothing in this chapter prevented separation of a Soldier who had been referred to such a program under any other provisions of this regulation.  Initiation of separation proceedings was required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter would be characterized as honorable or general under honorable conditions unless the Soldier was in an entry-level status and an uncharacterized description of service was required.  However, an honorable discharge was required if restricted-use information was used.

	a.  Paragraph 3-7 (Types of administrative discharges/character of service) 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.  Only the honorable characterization may be awarded to a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless an entry-level status separation (uncharacterized) is warranted.

	b.  Section II (Terms) of the glossary states that for Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service.  For Reserve Component Soldiers, entry-level status begins upon enlistment in the Army National Guard or U.S. Army Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his character of service was "uncharacterized" because he never had marijuana in his possession, he was not absent from his place of duty on 16 February 1979, he did not have a positive urinalysis test, and he was never enrolled in any ADAPCP rehabilitation classes.

2.  The applicant's contentions were carefully considered.

	a.  Records show the applicant received NJP on two separate occasions (i.e., one for wrongfully having in his possession marijuana and one for failing to go at the time prescribed to his appointed place of duty on 16 February 1979).  Records also show he did not appeal the NJP.

	b.  Records show the applicant's commander confirmed the applicant had a positive urinalysis test in July 1979 when he initiated action to separate the applicant for continued incidents of alcohol and drug abuse.  Records also show the applicant elected not to submit any statement in his behalf to rebut this issue.

	c.  Records show the applicant was command-referred to ADAPCP on 18 January 1979, he participated in an active rehabilitation program from 25 January 1979 to 26 March 1979, and he participated in counseling and command consultation through 8 August 1979.  Records also show the applicant was declared a rehabilitative failure on 16 August 1979.

	d.  In view of all of the foregoing, the evidence of record clearly refutes the applicant's contentions.

3.  Records confirm the applicant's honorable separation under the provisions of Army Regulation 635-200, chapter 9, based on alcohol or other drug abuse was administratively correct and in compliance with applicable regulations in effect at the time.  In addition, records show the applicant was properly and equitably separated from active duty.

4.  The evidence of record shows that entry-level status (the first 180 days of continuous active duty service) will be categorized as uncharacterized, if separation occurs during this period.  Records show the applicant completed 1 year and 2 days (i.e., 367 days) of net active service at the time of his separation from active duty on 3 October 1979.  Therefore, he is not entitled to a character of service of uncharacterized.

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.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20100009209



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ABCMR Record of Proceedings (cont)                                         AR20100009209



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