IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100012155 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

* his discharge was inequitable because it was based on one incident in 18 months
* the circumstances of the drug testing were also flawed because of a probable mix-up of the urine samples that were not marked or identified prior to or after collection
* he would not have tested positive even if the samples had been properly identified because he never used any drugs while serving in the Army

3.  The applicant provides no 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 enlisted in the Regular Army on 22 September 1981 for a period of 3 years.  He successfully completed his training and was awarded military occupational specialty 13B (cannon crewman).

3.  On 13 October 1982, the applicant was enrolled in Track I of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) following a positive urinalysis for marijuana/hashish.

4.  On 29 November 1982, the applicant had a positive urinalysis for marijuana/hashish.

5.  On 26 January 1983, the applicant was declared a rehabilitation failure.

6.  On 26 January 1983, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, for drug and alcohol rehabilitation failure.  The unit commander cited:

* continuous drug-related incidents
* failure of the ADAPCP (abstinence of hashish, missing one seminar and three scheduled appointments, and a positive urinalysis for marijuana)

7.  The applicant's service personnel records contain a statement, dated 11 February 1983, from the applicant's supervisor [specialist five] at the time in question.  He states, in pertinent part, "Private First Class [applicant] admitted to smoking hash at the time of his referral, but did not feel he had a problem."  In addition, the applicant's service personnel records contain an undated statement which states, in pertinent part, "I, [applicant], was told that I had a positive urine test.  I was placed in CCC for 30 days.  I refrained from using drugs for good."

8.  The applicant's election of rights is not available.

9.  On 16 March 1983, the separation authority approved the recommendation for discharge and directed that the applicant be furnished a general discharge.

10.  Accordingly, the applicant was separated with a general under honorable conditions discharge on 30 March 1983 under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  He had served 1 year, 6 months, and 9 days of creditable active service.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  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 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.  At the time of the applicant's separation an honorable or a general under honorable conditions discharge was authorized.

13.  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 contends the drug testing was flawed and he never used any drugs while serving in the Army.  However, at the time in question he made the statement, "I refrained from using drugs for good."  In addition, he admitted to smoking hash to his supervisor.

2.  The evidence of record shows the applicant tested positive for marijuana/
hashish on two separate occasions and he failed to complete the ADAPCP.  As a result, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  Although the applicant's election of rights is not available, administrative regularity is presumed.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.



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)                                         AR20100012155



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ABCMR Record of Proceedings (cont)                                         AR20100012155



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