IN THE CASE OF:	  

		BOARD DATE:	  11 October 2011

		DOCKET NUMBER:  AR20110005606 


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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant makes no additional statement.

3.  He provides a memorandum from his defense counsel, dated 14 April 1993, to support his request.

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 record shows he enlisted in the Regular Army on 13 February 1992.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* writing five checks with insufficient funds on five separate occasions
* breaking restriction

4.  On 25 January 1993, he underwent a mental status evaluation and he was determined to be psychiatrically cleared for any administrative action deemed appropriate by the examining psychiatrist.  The psychiatrist said the applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. 

5.  On 11 March 1993, the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) counselor provided a summary of the applicant's rehabilitation activities.  The counselor said the applicant was self-referred to ADAPCP and on 21 December 1992, he was enrolled for 8 sessions of the Track III Follow-up Group.  She added that he was a no show for 3 group sessions and was presently unsatisfactory in the ADAPCP.

6.  On 11 March 1993, he was counseled for:

* transfer from maintenance Platoon to Headquarters (HQ) Platoon
* disenrollment from Community Counseling Center [correctly referred to as ADAPCP] for unsatisfactory performance
* failure to meet Army Physical Fitness standards
* failure to follow Article 15 restrictions
* general inability to meet Army standards
* inability to maintain financial responsibility

   a.  His counselor said that effective 12 March 1993, he would be transferred to HQ Platoon awaiting final chapter 9 proceedings.  He added that the applicant's poor work performance, habitual tardiness, and inability to manage his financial responsibilities resulted in a company grade Article 15 in which he vacated said restriction.  He further stated that the applicant referred himself to the ADAPCP, but failed to meet the requirements resulting in a command referral that he also failed to meet.

   b.  In the applicant's response to the counseling, he stated that he was disenrolled from ADAPCP and recommended for a chapter 9 under false pretense.  He said he was told by his squad leader that he no longer had to go to ADAPCP.  He stated that his squad leader was told this information by the platoon sergeant who has since denied this allegation.  He added that as a result of being told this information, he no longer attended ADAPCP and was thus labeled a "rehabilitative failure" for simply doing what he was told.
   
7.  His record is void of any evidence or documentation that shows he was command referred to ADAPCP.

8.  On 13 April 1993, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) for his inability to successfully complete the ADAPCP.

9.  On 13 April 1993, the applicant acknowledged receipt of the discharge action. He was advised of his rights and requested to consult with counsel.   He also elected not to submit a statement in his own behalf.

10.  On 14 April 1993, his defense counsel stated, in a memorandum to the approving authority, that the applicant was pending a discharge for alcohol rehabilitation failure under chapter 9, Army Regulation 635-200.  He said the basis for the proposed separation was the applicant's failure to be rehabilitated after a self-referral to ADAPCP.  He offered that Army Regulation 600-85 (The Army Substance Abuse Program), paragraph 6-4(a)2, a self-referral to ADAPCP is considered limited use evidence.  Therefore, such evidence cannot be used in determining discharge characterization.  He further stated that since limited use evidence has been used in the applicant's separation packet, he should receive an honorable discharge.

11.  On an unspecified day, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 9 and directed that a General Discharge Certificate be issued.

12.  His DD Form 214 shows he was issued a general, under honorable conditions discharge on 20 May 1993.  The narrative reason for separation is listed as "Drug Abuse Rehabilitation Failure."  He had completed 1 year, 3 months, and 8 days of creditable active service.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.



14.  Army Regulation 600-85, Section II defines the limited use policy.  Paragraph 6-4(a)2, states that limited use prohibits the use of a Soldier's self-referral to ADAPCP on the issue of characterization of service in separation proceedings.

15.  The same regulation states a Soldier protected by the limited use policy may be recommended for administrative discharge on the basis of evidence other than information obtained directly or indirectly from the Soldier's involvement in the ADAPCP.  Such a Soldier may receive a discharge characterized as honorable, general, or under other than honorable conditions.  The Soldier will receive an honorable discharge certificate, regardless of his or her overall performance of duty, if discharge is based on proceedings where the Government initially introduces limited use evidence.

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 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.

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.  The counseling statement rendered on 11 March 1993 states that the applicant was command referred to ADAPCP after failing to meet the requirements of the program during his self-referral.  However, there is no evidence to substantiate the claim that the applicant was command referred to ADAPCP.

2.  The evidence of record shows he was self-referred to ADAPCP as verified by both the ADAPCP counselor and the defense counselor.  Additionally, on 14 April 1993 his defense counselor informed the battalion commander that the applicant was a self-referral to ADAPCP and as such, use of evidence of his rehabilitation failure could not be used in determining his discharge characterization. 

3.  As citied in Army Regulation 600-85, an honorable discharge certificate is rendered regardless of a Soldier's overall performance of duty, if the discharge is based on proceedings where the Government initially introduces limited use evidence.  Since the applicant was self-referred to ADAPCP, the use of his failure in the ADAPCP is considered limited use evidence.  Since limited use evidence was used in his separation packet, he is authorized an honorable discharge.  Therefore, in the interest of equity and justice, it would be appropriate to show that the applicant was honorably discharged.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  issuing the applicant an Honorable Discharge Certificate, dated 20 May 1993, in lieu of the General Discharge Certificate of the same date now held by the applicant; and
   
   b.  issuing him a new DD Form 214 reflecting the above corrections.



      _______ _   _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)                                         AR20110005606





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005606



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1