IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100027435 


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 that his General Discharge, under honorable conditions, be upgraded to an Honorable Discharge.

2.  He states the nature of his discharge suggests that he is unable to make any clear or rational decisions due to his addiction.  He contends that there was no mental evaluation performed by a licensed medical doctor and he was not provided legal representation. 

3.  He also states there was a clear lack of legitimate military procedures at the time of his discharge and he has since passed program courses to correct his situation. 

4.  He provided:

* his permanent change of station orders 
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two rehabilitation course completion certificates
* a book excerpt 

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.  His military records show he enlisted in the Regular Army on 28 September 1976 for 4 years.  After the completion of training, he served in military occupational specialty 63B (Light Wheel Vehicle Power Generator Mechanic).  The highest grade he attained while on active duty was sergeant/E-5.

3.  On 19 January 1982, his immediate commander referred him for a screening through the Community Counseling Center (CCC) due to his arrest by military police for possession of marijuana and hashish.

4.  After the CCC completed the screening, he was recommended for enrollment in the Alcohol and Drug Prevention and Control Program (ADAPCP). 

5.  A DA Form 2496 (Disposition Form), Subject:  Declaration of Rehabilitation Failure shows that on 25 May 1982, after more than 179 days enrollment, his immediate commander, in conjunction with ADAPCP staff, determined that his progress as reflected by his duty performance and conduct was unsatisfactory and that further rehabilitative efforts could not be justified. 

6.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 30 July 1982.  This form shows his behavior was normal; he was fully alert; he had a level mood; his thinking process was clear and his thought process was normal; and his memory was good.  He was also found to have no mental illness; to be mentally responsible; able to distinguish right from wrong and to adhere to the right; had the mental capacity to understand and participate in board proceedings; and met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  This form was signed by an authorized medical official.

7.  On 18 November 1982, his commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 9, for drug abuse rehabilitation failure.  He cited as the basis for his recommendation the applicant’s rehabilitation failure due to his duty performance and conduct, which did not improve after more than 179 days in the ADAPCP.  

8.  He acknowledged receipt of the notification on 18 November 1982 and noted the following:

   a.  He understood that military legal counsel for consultation was available to assist him upon his request; however, he elected the option that he did not desire that counsel;

   b.  He elected not to submit any statement on his own behalf; and

   c.  He did not request treatment in a Veterans Administration medical center. 

9.  On 1 December 1982, the separation authority approved the recommendation for discharge and directed that he be furnished a General Discharge, under honorable conditions.  Accordingly, he was discharged on 17 December 1982, in the grade of specialist/E-4.  He had a total of 6 years, 2 months, and 20 days of net active service.

10.  Item 25 (Separation Authority) of his DD Form 214 shows the entry
"AR 635-200 CHAP 9”; item 26 (Separation Code) shows the entry "JPC (JKK)”; and item 28 (Narrative Reason) shows the entry "DRUG ABUSE REHABILITATION FAILURE."

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

12.  He provided Headquarters, 9th Infantry Division and Fort Lewis, Orders 
88-23, issued on 2 May 1980.  These orders reassign him to the 88th Maintenance Company.  He also provided a 1st endorsement prepared by Headquarters, 21st Replacement Battalion, which further assigned him to the 81st Maintenance Company, effective 25 August 1980. 

13.  He provided two certificates of completion for the Project Recovery Program, dated 27 September 1999 and 23 February 2004.  These documents show he successfully completed the Intervention Community Based, Substance Abuse Program which was conducted in Naples, FL. 

14.  He also provided an excerpt from a book that outlines the correction of military records and the review of discharges. 

15.  Army Regulation 600-85 (ADAPCP) prescribes policies and procedures needed to implement, operate, and evaluate the ADAPCP.  It states in pertinent part that self referral is the most desirable method of discovering alcohol or other 
drug abuse.  The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek treatment and rehabilitation.  

16.  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.  

17.  Army Regulation 635-200, chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Paragraph 14-12c(2) provides for separation for commission of a serious offense such as abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

18.  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.

19.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) in effect at the time, prescribed 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 shows that the SPD “JPC”, as shown on his DD Form 214, specifies the narrative reason for discharge as "Drug Abuse - Rehabilitation Failure" and that the authority for discharge under this SPD is "Army Regulation 635-200, chapter 9."  

20.  The same regulation also shows that the SPD of "JKK," as shown on his 
DD Form 214, specifies the narrative reason for discharge as "Misconduct" and that the authority for discharge under this SPD is "Army Regulation 635-200, chapter 14-12c(2)."

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that after an arrest by military authorities, his command referred him for enrollment in ADAPCP.  As a result of his unsatisfactory duty performance and conduct, he was deemed a rehabilitative failure.

2.  His immediate command recommended separation under the provisions of Army Regulation 635-200, chapter 9, for drug abuse – rehabilitative failure.  He was given a valid mental status evaluation and he had the opportunity to consult with legal counsel, but chose not to. 

3.  The evidence shows he was discharged under the provisions of Army Regulation 635-200, chapter 9, for drug abuse - rehabilitation failure.  He was issued an SPD Code of "JPC (JKK)" and was furnished a General Discharge, under honorable conditions.   

4.  He has provided no evidence, and there is none, to show that his General Discharge, under honorable conditions was unjust, inequitable, or improper.

5.  It is also noted that he had two separation codes shown in item 26 of his 
DD Form 214; JPC and JKK, respectively.  He is advised that "JPC" is the correct code, since it corresponds to the reason for his separation from the Army.

6.  In view of the foregoing, there is no basis to grant the 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)                                         AR20100027435





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ABCMR Record of Proceedings (cont)                                         AR20100027435



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