BOARD DATE: 7 July 2011
DOCKET NUMBER: AR20100028318
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 an honorable discharge.
2. The applicant states his discharge was based on retaliation and racism. He explains:
a. he filed a complaint against his platoon sergeant for kicking him.
b. he was stopped by the military police and told they smelled marijuana even though he did not do drugs.
c. when he attempted to pursue his complaint against his platoon sergeant, they offered to enter him into a drug abuse program, which he declined.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants military records show that he enlisted in the Regular Army on 7 November 1978 and was awarded the military occupational specialty of motor transport operator.
3. He accepted nonjudicial punishment (NJP) on 23 October 1981 for, while being posted as a sentinel, drinking at his post and for wrongfully using marijuana.
4. He accepted NJP on 30 December 1981 for failing to go at the time prescribed to his appointed place of duty.
5. On 10 March 1982, the Clinical Director of the Alcohol and Drug Abuse Program (ADAP) stated that the applicant self-referred himself to ADAP on 20 January 1982. He was officially enrolled into ADAP on 21 January 1982 with a diagnosis of marijuana abuse. The clinical director added the applicant's "attitude and approach toward treatment and our program has been totally geared toward ridding himself of the Army. Initially, it appeared he was sincere about abstaining from marijuana, but over the last few weeks, it has become obvious that he has no intention of refraining from the use of marijuana. [The applicant] is not interested in rehabilitation, and to offer him any assistance toward his use of marijuana is a waste of time." The applicant was then declared a rehabilitation failure.
6. On 6 April 1982, the applicant's commander notified him of his intent to recommend his discharge for drug abuse rehabilitation failure and of his rights in conjunction with that recommendation. The applicant elected his right to legal counsel for consultation and to submit a statement in his own behalf. The applicant's records do not contain any statement from him.
7. On 6 April 1982, his commander forwarded a recommendation to discharge the applicant for drug abuse rehabilitation failure, and the recommendation was approved by the proper authority.
8. Accordingly, on 28 April 1982, the applicant was given a general discharge for drug rehabilitation failure.
9. 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 ADAP 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. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. 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.
DISCUSSION AND CONCLUSIONS:
1. Contrary to the applicant's contentions, he did use marijuana (as evidenced by his NJP for his use of marijuana) and his self-referral into the ADAP.
2. There is no evidence of the applicant filing a complaint about being kicked or his discharge being based on racism.
3. The applicant self-referred himself into ADAP and he was declared a rehabilitation failure. Therefore, he was properly processed for discharge.
4. Based on the applicant's two NJPs and the clinical director's statement that he had no intention of refraining from the use of marijuana, the decision to give him a general discharge was appropriate and there is no reason to change it.
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) AR20100028318
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ABCMR Record of Proceedings (cont) AR20100028318
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