IN THE CASE OF:	  

		BOARD DATE:	    7 July 2011

		DOCKET NUMBER:  AR20100029257 


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.

2.  The applicant states many years have passed and he feels he truly deserves to finally be remembered as an honorably discharged Soldier for the sake of his country and family.

3.  The applicant provides a DD Form 293 (Applicant for the Review of Discharge from the Armed Forces of the United States), dated 1 December 2010.

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 2 February 1983 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63N (M60A1/A3 Tank System Mechanic).

3.  On 29 June 1983, he was assigned to Headquarters and Headquarters Company, 5th Battalion, 68th Armor in Germany.

4.  On 11 April 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

5.  On 10 September 1985, he was given a mental status evaluation.  The examiner found that he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

6.  On 13 November 1985, the clinical director of the Sullivan Community Counseling Center, Mannheim, Germany, provided a synopsis concerning the applicant's rehabilitation activities.

	a.  He was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 21 March 1985 after his self-referral for cocaine usage.

	b.  He provided five urine samples, two of which were positive for cocaine.  Five additional urine samples were taken, two of which were positive for opiates, one for barbiturates, and two for amphetamines.  He tested positive for cocaine on 18 August 1985 and he admitted to continued drug abuse.

	c.  He was recommended for discharge as a rehabilitation failure based on his continued lack of progress in developing a drug-free lifestyle.

7.  On 13 December 1985, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 9.  The commander stated his reasons for the proposed discharge were his:

* two urinalysis results being positive for cocaine
* being declared a rehabilitation failure from ADAPCP
* misconduct for setting a poor example and undermining the special trust and confidence placed in him by the U.S. Army
8.  The commander advised the applicant of his right to:

* consult with counsel
* request a hearing before an administrative board
* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

9.  On 17 December 1985, the applicant acknowledged that he had been advised by counsel of the:

* basis for the contemplated action against him under the provisions of Army Regulation 635-200, chapter 9, for drug rehabilitation failure
* effects of such a discharge
* rights available to him
* effect of any action taken by him in waiving his rights

10.  He waived consideration of his case by a board of officers and personal appearance before such board.  He did not submit statements in his own behalf for consideration.

11.  On 18 December 1985, his commander recommended him for discharge under the provisions of Army Regulation 635-200, chapter 9, due to drug rehabilitation failure.

12.  The appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 9, and directed the applicant be furnished a General Discharge Certificate.

13.  On 17 January 1986, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, by reason of drug abuse - rehabilitation failure.  He completed 2 years, 11 months, and 16 days of creditable active service that was characterized as under honorable conditions.

14.  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 general discharge was authorized.

15.  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 was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.  Therefore, there is an insufficient basis to change the narrative reason for the applicant's discharge.

2.  His continued drug abuse, especially in a foreign country, while enrolled in the ADAPCP and his failure to complete the program clearly shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

3.  Although he contends it has been many years since his discharge, the ABCMR does not upgrade discharges based solely on the passage of time.

4.  In view of the foregoing, there is no basis to grant the applicant's request.

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)                                         AR20100029257



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ABCMR Record of Proceedings (cont)                                         AR20100029257



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