IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100027848


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states that after speaking with an attorney, he was advised that he could not be discharged for being a rehabilitative failure while he was in rehabilitation.  He states he was advised that he should have his discharge upgraded.

3.  The applicant provides no additional evidence.

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 7 October 1986.  He completed training as an aircraft power plant repairer.

3.  The applicant's records show he was counseled on 12 separate occasions for:

* testing positive for both tetrahydrocannabinol and cocaine during a troop urinalysis
* overall performance
* failing to report to physical training
* failing to be at his appointed place of duty
* unsatisfactory inspection of his room
* being barred from reenlistment
* being absent without leave (AWOL)
* failing to repair

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 28 October 1987 for wrongful use of marijuana.

5.  In an undated Chronological History of Drug and Alcohol Abuse, the commanding officer stated he was initiating elimination action against the applicant based on his determination that the applicant was a rehabilitation failure due to drug abuse.  According to his commander, the applicant tested positive on his urinalysis on 16 September 1987 and he enrolled in the Army Drug and Alcohol Prevention and Control Program (ADAPCP) on 17 February 1988.  The applicant underwent a second urinalysis on 5 April 1988 and he again tested positive for a controlled substance.  The Chronological History of Drug and Alcohol Abuse shows he was counseled by the installation ADAPCP facility on 14 occasions regarding alcohol and/or drug abuse.

6.  On 18 May 1988, the applicant's commander was notified by the Community Assistance Center Clinical Director that she agreed with the applicant being declared a rehabilitation failure.  In her notification she stated he continued to demonstrate unacceptable behavior by failing to follow through with treatment objectives.  The Clinical Director stated that the applicant should be processed immediately for separation from the service.

7.  On 2 June 1988, NJP was imposed against him for failing to go to his appointed place of duty.

8.  On 23 June 1988, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, for rehabilitation failure.  He acknowledged receipt of the notification and after consulting with counsel he did not submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on 29 June 1988.  The applicant was discharged on 13 July 1988 under the provisions of Army Regulation 635-200, chapter 9, due to rehabilitation failure.  He was furnished a General Discharge Certificate.

10.  The available record does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  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 Soldiers 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.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in an entry-level status and an uncharacterized description of service is required.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, he was misinformed by his attorney.  In accordance with the applicable regulation, 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.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.

2.  His records show he was counseled on 14 occasions by the installation ADAPCP facility regarding alcohol and/or drug abuse.  He has not shown error or injustice in the type of discharge he received.

3.  In view of the foregoing, his request should be denied.


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 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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100027848



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