IN THE CASE OF:
BOARD DATE: 14 October 2010
DOCKET NUMBER: AR20100009497
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, in effect, that the separation authority (Army Regulation 635-200, chapter 9) and the narrative reason for separation (drug abuse rehabilitation failure) be removed from his discharge record.
2. The applicant states no specific basis for his request.
3. The applicant provides no documents 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant completed initial active duty for training while a member of the U.S. Army Reserve (USAR) and he was awarded military occupational specialty 13B (Cannon Crewman).
3. On 27 November 1985, he enlisted in the Regular Army and he was stationed in Korea from December 1985 to December 1986 until he was transferred to Fort Lewis, Washington.
4. On 19 February 1988, he was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for evaluation. The initial screening process by the ADAPCP staff identified the applicant as a cocaine and marijuana abuser. On 10 March 1988, this diagnosis was confirmed by medical evaluation and a treatment plan was prescribed.
5. The applicant received several negative counseling statements for his behavior and attitude and, on 15 June 1988, he was dropped from the Basic Skills Education Program (BSEP) for missing classes, being tardy, being disruptive, and for verbally abusing the instructor.
6. On a 16 June 1988, he tested positive for marijuana during a urinalysis. On 27 June 1988, his rehabilitation team determined his progress had been unsatisfactory and the ADAPCP staff in conjunction with the commander declared the applicant a rehabilitation failure. The applicant was eligible for separation with an honorable characterization of service because much of the information had been obtained from the Soldier under the enumerated special circumstances of treatment.
7. On 26 July 1988, the applicant acknowledged he had been advised of the proposed action to discharge him under the provisions of Army Regulation
635-200, chapter 9 due to alcohol or other drug rehabilitation failure. He also acknowledged he understood the reasons therefore, and that he had been advised of his right to consult with legal counsel. He voluntarily waived this right.
8. On 26 July 1988, the battalion commander directed that the applicant be discharged accordingly. On 9 August 1988, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, due to drug abuse rehabilitation failure with an honorable discharge. He had completed 2 years,
8 months, and 13 days of net active service this period.
9. Army Regulation 635-200 (Personnel Separations) 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 the 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. An honorable discharge was required if restricted use information was used.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the separation authority (Army Regulation
635-200, chapter 9) and the narrative reason for separation (drug abuse rehabilitation failure) should be removed from his discharge record.
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. Given the applicant's offenses there is no other authority or narrative reason for separation that would be appropriate.
3. There is neither documentation nor rationale to support 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.
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