IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110001368 


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 he was told that he failed a drug test, which resulted in his being reduced in rank and his being given a general discharge.  He states the Army was never able to locate this drug test.  He adds that he suffered from mental health issues while in the military.  He further states he did not use drugs and believes his character of discharge should reflect his honorable service.

3.  The applicant provides no additional evidence in support of his application.

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 30 May 1979.  He completed initial entry training and was awarded the military occupational specialty of cannon crewmember.  He reenlisted on 18 March 1983 and on 29 May 1986.  The highest rank/grade he attained was staff sergeant/E-6.

3.  A DA Form 2496 (Disposition Form) shows he referred himself to the Army Drug and Alcohol Prevention and Control Program (ADAPCP) for cocaine abuse in November 1988. 

4.  He accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) during the period 5 to 7 June 1989.

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 13 June 1989, indicated he was evaluated during a hospitalization at inpatient psychiatry.  Based on this evaluation, the diagnostic impression was that of cocaine dependence.  The examiner indicated that although the applicant continued to deny renewed use of cocaine, the applicant admitted that his recent AWOL period was a result of his intense craving for cocaine, i.e. cocaine was still controlling his behavior.  The examiner stated the applicant was regarded as a drug rehabilitation failure.  His separation from the service under the provisions of chapter 9 was recommended.  The examiner further determined the applicant had the mental capacity to understand and participate in separation proceedings.
 
6.  An ADAPCP Client Progress Report, dated 11 July 1989, shows his progress during rehabilitation was unsatisfactory and it was recommended he be separated.

7.  On 11 August 1989, the applicant's commander notified him that he was recommending his discharge under the provisions of chapter 9 of Army Regulation 635-200 (Personnel Separations).  He stated the recommendation was based on the applicant's unsatisfactory progress in the Track II program and because he was AWOL from 5 to 7 June 1989.  The commander stated he was recommending the applicant be given a general discharge.

8.  The commander advised the applicant of his right:

* to consult with counsel
* to submit statements in his own behalf
* to obtain copies of documents that would be sent to the separation authority
* to have his case heard by a board of officers
* to waive the above rights in writing
9.  On 26 July 1989, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 9 of Army Regulation 635-200 for alcohol or other drug rehabilitation failure, and its effects; of the rights available to him, and the effect of any action taken by him in waiving his rights.

10.  He submitted a statement in his own behalf for consideration.  He stated that on the first of November 1988 he referred himself to ADAPCP in an attempt to better himself and be able to perform his duties in a more efficient manner.  He stated that he was sent to a treatment facility and then was to continue with a follow-up program.  He stated he was unable to attend many of the follow-up meetings due to required training that lasted until April 1989, but he managed to stay away from alcohol and drugs.  He stated that by May 1989 he began to have periods of depression, anger, blackouts, and other behavior that he couldn't explain.  He stated that his family and he did not agree with the doctor's evaluation that these problems were the "result of his intense craving for cocaine."  He added that he felt it was in the best interest to get out of the Army so he could get help he needed.  He stated that he believed he deserved better than a general discharge based on his total record and he requested an honorable discharge.

11.  He waived consideration before a board of officers.

12.  The applicant's commander stated the applicant was provided ample time to correct his abuse of alcohol or drugs and failed to complete the alcohol and drug abuse prevention counseling program or correct his substance abuse on his own.  Therefore, he recommended his separation from the service.

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

14.  On 28 August 1989, he was given a general discharge under the provisions of chapter 9 of Army Regulation 635-200 due to drug abuse - rehabilitation failure.  He had completed 10 years, 2 months, and 18 days of active service.

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

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 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.  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 unless the Soldier is in entry-level status and an uncharacterized description of service is required.

17.  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.  Contrary to the applicant's contentions that he never used drugs, he self-referred himself in ADAPCP for cocaine abuse.

2.  The applicant was determined to be an alcohol and/or drug abuse failure.  He accepted NJP for being AWOL.  He was properly and equitably discharged in accordance with regulations in effect at the time.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  The applicant was separated because he was declared a rehabilitation failure, not because of a positive urinalysis.

4.  The applicant has not submitted any evidence to support his contention that he had mental health issues or how that would justify his alcohol and/or drug abuse failure for which he was discharged.  His entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Therefore, there is an insufficient basis on which to upgrade his discharge.





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)                                         AR20110001368



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ABCMR Record of Proceedings (cont)                                         AR20110001368



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