IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100029595 


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 honorable.

2.  The applicant states the punishment he received for his first offense was unjust.  He contends his punishment was not equal to that given to other Soldiers who had positive drug use results and had relapsed during their rehabilitation.  He would like his discharge changed to honorable.

3.  The applicant provides a copy of 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 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.  On 1 February 1984, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 94B (Food Service Specialist).  He was subsequently assigned for duty in the Federal Republic of Germany.

3.  On 15 November 1984, the applicant was advanced to private first class/pay grade E-3.

4.  On 27 March 1985, the applicant was referred to the Bremerhaven Counseling Center and was subsequently enrolled in Track II of the Army Drug and Alcohol Prevention and Control Program (ADAPCP) due to a positive urinalysis for tetrahydrocannabinol (THC).

5.  On 21 May 1985, the applicant accepted nonjudicial punishment for wrongful use of THC.

6.  On 10 September 1985, the clinical director informed the applicant's commander that the applicant received a second positive urinalysis for THC indicating the potential for his rehabilitation was poor.

7.  On 12 September 1985, a mental status evaluation determined the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content was normal, and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to understand and participate in proceedings.

8.  On 25 September 1985, the applicant underwent a medical examination wherein he was found to be qualified for separation.

9.  On 17 October 1985, the commander notified the applicant of his intent to recommend the applicant's separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9, due to a second positive urinalysis for THC.

10.  On 17 October 1985, the applicant consulted with counsel and elected not to make a statement in his own behalf.

11.  On 15 November 1985, the appropriate authority approved the recommendation for separation and directed that the applicant be issued a General Discharge Certificate.

12.  Accordingly, he was discharged under honorable conditions on 6 December 1985 for drug abuse rehabilitation failure.  He completed 1 year, 10 months, and 6 days of creditable active duty service.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under honorable conditions discharge should be upgraded to honorable because it was unjust and unequal to the type of discharges given to other Soldiers for similar offenses.

2.  The evidence of record indicates the applicant twice tested positive for wrongful use of THC and was accordingly processed for separation.  He was afforded the opportunity to consult with legal counsel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The type of discharge and reason were therefore appropriate considering all of the facts of the case.

4.  Notwithstanding the applicant's assertion that his discharge was unjust, there is no available evidence showing he had any mitigating circumstances or that his characterization of service was any harsher than that given to other Soldiers who were discharged for similar offenses.

5.  In view of the foregoing, the applicant's 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)                                         AR20100029595



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ABCMR Record of Proceedings (cont)                                         AR20100029595



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