IN THE CASE OF:	  

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110012141 


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, through his representative in congress, upgrade of his general discharge to an honorable discharge.

2.  The applicant states it has been nearly 30 years since he was discharged and he feels it has been far too long.

3.  The applicant provides congressional letters dated 6 June and 15 April 2011 with 5 enclosures that include a Privacy Act Statement.

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 21 October 1980.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 11 June 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating the following three articles on or about the dates indicated:

* Article 134 - 4 May 1982, for wrongfully having in his possession some amount of marijuana
* Article 91 - 4 May 1982, for having in his possession a device used to administer marijuana (one pipe)
* Article 134 - 4 May 1982, for having sexual intercourse with a married woman, not his wife

4.  On an unknown date, the applicant acknowledged he was counseled three times between 13 April and 9 July 1981, for his excellent performance of duty.  He also acknowledged he was counseled four additional times between 30 April 1981 and 30 June 1982 for the following infractions:

* sleeping in class
* failing to repair
* having insufficient funds to satisfy a debt
* alcohol abuse

5.  On 21 January 1982, the applicant was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) as a result of his alcohol abuse.

6.  On 30 June 1982, the Director, Personnel and Community Activities, informed the applicant's commander of the following:

	a.  as a result of the applicant's enrollment, his treatment consisted of group and individual counseling, drug/alcohol education, and command consultation on the following dates:

* 21 January 1982			entered ADAPCP
* 26 January 1982			individual/group counseling
* 2 February 1982			failed to keep appointment
* 9 February 1982			failed to keep appointment
* 28 April 1982				command consultation
* 
4 May 1982				unit consultation
* 17 June 1982			failed to keep appointment

	b.  the applicant did not curtail his substance abuse as evidenced by his apprehension for possession of marijuana and continual failure to keep scheduled appointments; and

	c.  recommended the applicant be declared a rehabilitative failure and separated from the Army.

7.  On 22 July 1982, the commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9, for ADAPCP rehabilitation failure.  He indicated the applicant's repeated abuse of alcohol and being declared an ADAPCP rehabilitation failure formed the basis for the proposed separation action.

8.  On 26 July 1982, having been advised of the basis of the contemplated separation action and of the effects of a general discharge, the applicant declined consultation by counsel, to submit a statement in his own behalf, and treatment in a Veterans Administration (VA) medical center.

9.  On 23 August 1982, the separation authority approved the recommendation for discharge and directed the applicant be issued a General Discharge Certificate.

10.  Accordingly, on 7 September 1982, the applicant was discharged with a general discharge under honorable conditions.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he would have been issued at the time is not available for review.  However, his record contains a National Archives and Records Administration (NA) Form 13038 (Certification of Military Service) that confirms his service from 21 October 1980 through 7 September 1982.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) 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.

	a.  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.

	b.  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 contends his general discharge should be upgraded to an honorable discharge because he received it nearly 30 years ago and it has been a long time since he received this discharge.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges solely based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  The evidence of record clearly shows the applicant was a rehabilitation failure and was discharged accordingly.

3.  Lacking evidence to the contrary, the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110012141



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012141



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1