IN THE CASE OF:	  

		BOARD DATE:	    8 September 2011

		DOCKET NUMBER:  AR20110003475 


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, under honorable conditions discharge to an honorable discharge.

2.  He states he believes his record to be unjust.  He never received an Article 15 or any action to warrant other than a fully honorable discharge.  

3.  He 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's military records show he enlisted in the Regular Army on 5 May 1980 for 4 years.  He completed training and was awarded military occupational specialty 62E (Heavy Vehicle Construction Equipment Operator).  He was promoted to pay grade E-4 on 1 January 1984.

3.  On 19 December 1983, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being drunk on duty on or about 8 December 1983.  He did not appeal the punishment.

4.  In a memorandum, dated 9 January 1984, the Clinical Director, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), summarizing the applicant's ADAPCP rehabilitation efforts:

   a.  the applicant was referred to the ADAPCP for evaluation of suspected alcohol and drug abuse.  Initial evaluation revealed a seven-year history of alcohol and marijuana use.  The applicant reported consumption of alcohol 3-4 times per week, with intoxication occurring one time per week.  He denied alcoholic blackouts, but acknowledged an increase in his tolerance level to alcohol.  He denied being dependent on drugs or alcohol.  He reported regular use of marijuana from age 16 up until April 1981, at which time he was enrolled into the ADAPCP following submission of a positive urinalysis for marijuana.  The applicant was terminated form the program in January 1982 and reported use of marijuana on a “couple of occasions since”; and
   
   b.  the applicant was defensive and hostile in the interview and denied having a drug or an alcohol problem.  He assumed no responsibility for his behavior or the consequences associated with it and denied the basis for his referral to the ADAPCP.  Consultation with the Command indicated that the applicant was referred following an incident of intoxication on duty.  It was reported by the Command that this incident was one of several drug and/or alcohol related incidents which had occurred since January 1982.  It was their assessment that the applicant’s problem with drugs and alcohol was beyond the intent or scope of a short-term rehabilitation program as outlined in Army Regulation 600-85.  The applicant did not appear to be amenable to counseling services at that time.

5.  On 23 January 1984, the applicant's company commander advised the applicant that he was initiating action for his discharge pursuant to the provisions of chapter 9, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for his continued drug and alcohol abuse and lack of response to rehabilitation services.  The company commander stated that in April 1981, after a positive urinalysis for marijuana, the applicant was enrolled into the ADAPCP Program from which he was terminated in January 1982.  He was referred once again following an incident of intoxication on duty.  He had also been involved in several drug and/or alcohol related incidents since January 1982.  The applicant assumed no responsibility for that behavior or the consequences associated with it.  He submitted copies of two Letters of Commendation and Driver and Mechanic Badge with “S” Device and Good Conduct Medal orders.

6.  On 23 January 1984, the applicant's company commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 9 with a general discharge.  

7.  On 26 January 1984, after consulting with counsel, the applicant acknowledged receipt of the proposed action to separate him under the provisions of Army Regulation 635-200, chapter 9, for abuse of alcohol, and its effect.  He acknowledged he might be issued a general discharge and the results of the issuance of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.  

8.  In his statement, dated 7 February 1984, he requested not to be discharged from the Army or that in the event of discharge, he be awarded an honorable discharge.  He added that:

   a.  he did not believe that he was an alcohol or other drug abuse failure.  He believed that the Commander’s Letter of Notification, dated 23 January 1984, was misleading in its description of the so-called drug and alcohol abuse incidents.  It is true that in April 1981 he had a positive urinalysis for marijuana and he subsequently was enrolled in the ADAPCP Track I Program and was determined to be a rehabilitation success.  It was also true that he was involved in an incident of being drunk while on duty on 28 December 1983.  In both instances, he admitted that he was wrong and accepted his punishment;

	b.  the “several drug and/or alcohol related incidents since January 1982” were misleading, in that those incidents were based entirely on suspicions and were never substantiated in fact.  In April 1983, while returning from leave in a friend’s car, the car slid off the road.  The Virginia State Police discovered some valium and a small amount of marijuana in the car.  He was held in jail for seven days.  However, all of the drug charges were dropped because he was innocent. The other incident involved a suspicion of being drunk while on duty on 27 September 1983.  He was questioned by a military policeman who subsequently determined that he was not intoxicated.  He was released and allowed to return to his place of duty and continued driving his military vehicle.  In fact, he was given a letter of commendation for his work on the project;

	c.  contrary to the assertions contained in the letter, he never told the official that he became intoxicated at least once per week nor did he tell him that he had used marijuana since January 1982.  In fact, he had undergone several urinalysis tests since that time and had never had a positive result because he did not use marijuana.  He also told him that he did not have a drug problem; and 

	d.  he entered the Army on 5 May 1980 and has had a good record with the exception of the two incidents.  He did not believe that he should be discharged under the provisions of chapter 9, with only three months left until his expiration of term of service.  If, however, it was felt his discharge was warranted, he respectfully requested that he be awarded an honorable discharge.

9.  On 5 March 1984, the appropriate separation authority approved the applicant’s discharge and directed the issuance of a General Discharge Certificate.  

10.  He was discharged in pay grade E-1 on 9 March 1984, under the provisions of Army Regulation 635-200, chapter 9, by reason of drug abuse - rehabilitation failure, with a general, under honorable conditions discharge.  He was credited with completing 3 years, 9 months, and 28 days of net active service and time lost from 19 to 25 April 1983.

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

12.  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 Army's 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.  The individual may be issued an honorable or general, under honorable conditions discharge.

13.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, after a positive urinalysis in April 1981, was enrolled in the ADAPCP program.  He was terminated from the program in January 1982.  He was punished under Article 15 in December 1983 for being drunk on duty and again enrolled in the ADAPCP.  In January 1984, his company commander felt he had assumed no responsibility for his behavior after being involved in several drug and/or alcohol related incidents or the consequences associated with it.  His company commander recommended his elimination from the Army with a general discharge.  

2.  The applicant acknowledged the proposed separation and submitted a statement in his own behalf.  He was subsequently discharged under the provisions of Army Regulation 635-200, chapter 9, as a drug abuse rehabilitation failure.  His contentions are acknowledged; however, he was properly separated for rehabilitation failure and he has submitted neither probative evidence nor a convincing argument in support of his request.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  In view of the circumstances in this case, he is not entitled to an upgrade of his general discharge.  Therefore, there is no basis for granting his 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 hereby 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)                                         AR20110003475



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ABCMR Record of Proceedings (cont)                                         AR20110003475



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