IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013645 


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 upgrade of his general discharge to an honorable discharge.  He also requests change of his narrative reason for separation from "drug abuse - rehabilitation failure" to "failure to adapt to military life."
 
2.  The applicant states the purpose of this request is to reconcile past mistakes and seek enlistment in the Tennessee Army National Guard (TNARNG).  After consulting with recruiters he was advised to request a change to his narrative reason for separation.  He claims pursuant to the guidelines set forth in his election of rights, the status of his character of service should be changed to honorable.  His election of rights states he would be ineligible to enlist in the Army for a period of 2 years after discharge.  His recruiter informed him that neither the reenlistment code nor the chapter 9 would exclude him from enlisting but the problem lies solely in the narrative reason for separation.

3.  The applicant feels he would be an asset to the ARNG due to his maturity, leadership, and mechanical and management skills.  He is not nor has he ever been addicted to drugs or alcohol.  He merely used them as a form of rebellion.  To verify this assertion, he sought the opinion of a Dr. J------ H------, a Licensed Professional Counselor, Mental Health Service Provider, and a Master Addictions Counselor.  His refusal to participate in the program was based on the fact he thought he had been done wrong because he tested positive on an urinalysis a mere three days after voluntarily enrolling in the program in an effort to avoid disciplinary action for something he had already admitted to doing.  In retrospect, he should have simply accepted the punishment and continued his service.   

4.  The applicant further states his reasons for wanting to join the ARNG are simple.  He feels compelled to serve his community and country and he would not squander the privilege and opportunity as he did in his youth.  He points out he has grown in maturity and character, he has been married for 10 years, and he made a mistake.

5.  The applicant provides:

* a letter of support from Dr. H------, dated 8 April 2010
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* extracts from his service personnel records

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 17 March 1987 for a period of 3 years.  He successfully completed training and he was awarded military occupational specialty 13F (fire support specialist).

3.  Records show on 11 April 1988 the applicant was enrolled in Track II of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) subsequent to a self-referral for drug abuse.

4.  On 8 June 1988, nonjudicial punishment was imposed against the applicant for using marijuana and hashish between 18 February 1988 and 18 March 1988.  His punishment consisted of a reduction to E-1 and extra duty.

5.  On 8 August 1988, the applicant was disenrolled from the ADAPCP for failure to progress.  The letter from the ADAPCP Clinical Director states during the course of treatment the applicant reported he had continued alcohol and hashish use.

6.  The applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9, for drug abuse rehabilitation failure.

7.  On 19 October 1988, the applicant consulted with counsel, acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him, and he elected not to submit a statement in his own behalf.  His election of rights also stated he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading of his discharge; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.  In addition, the applicant further understood that he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge.

8.  The separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.  The applicant was accordingly discharged on 30 November 1988.

9.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, CHAP [chapter] 9."  Item 26 (Separation Code) of his DD Form 214 shows the entry "JPC."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "DRUG ABUSE-REHABILITATION FAILURE."

10.  In support of his claim, the applicant provided a letter from D. H------, who states:

* the applicant has attended individual psychotherapy sessions with him on four occasions (2 June 2009, 11 June 2009, 11 March 2010, and 8 April 2010)
* he conducted an initial diagnostic interview and he was unable to diagnose the applicant with a substance abuse disorder
* after having been briefed on the applicant's previous experiences with the ADAPCP in November 1988, he feels a correction of the record would be justified and accurate
* there was an insufficient amount of time for detoxification before administering an initial urinary drug screen
* Cannabis (marijuana) typically stays in the system for approximately
30 days
* if you give a patient a urinary drug screen three days after entering treatment, he/she will definitely show positive for cannabis if they have been using that substance
* he feels the narrative reason for separation for the applicant's discharge is inaccurate
* he believes the applicant is not, nor has he ever been addicted to or abused drugs
* he does believe the applicant is guilty of using cannabis in this particular incident
* he feels a person cannot be "rehabilitated" from a condition which they do not have
* the ADAPCP program would appear to be more accurately described as counseling rather than rehabilitation
* he does agree at that time the applicant definitely was in need of counseling
* he does not see a basis for a substance abuse diagnosis, which if that were the case would indicate rehabilitation as an intervention
* the applicant has made tremendous progress in the recent counseling sessions
* he feels the applicant would be an outstanding candidate for the ARNG

11.  There is no indication in the available records that the applicant applied to the ADRB for a discharge upgrade 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 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.

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.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation, in effect at the time, states the reason for discharge based on 


separation code JPC is "drug abuse - rehabilitation failure" and the regulatory authority is Army Regulation 635-200, chapter 9.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and Dr. H------'s contentions were carefully considered.  However, evidence of record shows during the course of the applicant's treatment in the ADAPCP he reported he had continued alcohol and hashish use.  As a result, he was disenrolled from the program for failure to progress which led to his discharge.

2.  The applicant's record of service included one nonjudicial punishment and his failure 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.  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.  The applicant acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued to him.

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

5.  The narrative reason for separation used in the applicant's case is correct and was applied in accordance with the applicable regulations.

6. In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100013645



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ABCMR Record of Proceedings (cont)                                         AR20100013645



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