IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110013778 


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 (GD), under honorable conditions be upgraded to an honorable discharge (HD).

2.  He states, in effect, he needs his discharge upgraded to make him eligible for Department of Veterans Affairs (VA) Education Benefits. 

3.  He did not provide any additional documentation.  

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 record shows he enlisted in the Regular Army on 13 April 1982.  After completion of training, he served in military occupational specialty 76P (Materiel Control and Accounting Specialist).
3.  Item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he earned the Army Service Ribbon and Parachutist Badge. 

4.  Item 18 (Appointments and Reductions) of his DA Form 2-1 shows private first class (PFC)/E-3 as the highest grade he attained while serving on active duty.  

5.  On 11 March 1983, he was referred by his command to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for abuse of marijuana.  

6.  On 21 October 1983, he was declared a rehabilitative failure after he tested positive for use of marijuana during a random urinalysis test.  The counselor’s impression was that the applicant was either unwilling or unable to remain free of substance abuse, which made him a poor candidate for further military service.  

7.  On 18 November 1983, the applicant’s chain of command recommended him for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, for drug-abuse rehabilitation failure.  The commander noted that the applicant tested positive for marijuana use in January and September 1983.

8.  After consulting with counsel, he waived his rights to receive treatment in a VA medical center.  He elected to submit a statement in his own behalf.  In his statement he contended he was a good Soldier who had made a mistake and he did not want to get out of the Army.  He was given a urinalysis test the night after he returned from leave in January 1983.  After he was enrolled in the ADAPCP, he took leave in August 1983 and was given another urinalysis test, in which he tested positive.  

9.  On 2 December 1983, the separation authority approved the recommendation for discharge and directed that the applicant be furnished a GD, with his service characterized as under honorable conditions.  Accordingly, he was discharged on 
23 December 1983, in the grade of PFC/E-3.  He had a total of 1 year, 8 months, and 11 days of net active service.

10.  Item 25 (Separation Authority), of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry " AR 635-200, CHAPTER 9" and item 28 (Narrative Reason), shows the entry "DRUG ABUSE REHABILITATION FAILURE."

11.  There is no evidence that the applicant 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 9 contained the authority and outlined the procedures for discharging individuals because of alcohol or other drug abuse.  A member who had been referred to the ADAPCP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts were no longer practical.  

13.  Army Regulation 635-200, paragraph 3-7a stated an HD was a separation with honor and entitled the recipient to benefits provided by law.  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 clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  He requests his GD be upgraded to a fully HD in order to make him eligible to receive VA Education Benefits. 

2.  The evidence of record shows he tested positive for marijuana use in January 1983 and as a result, he was referred for enrollment in the ADAPCP by his chain of command as an effort to help him.

3.  After returning from leave in August 1983 and while still enrolled in the ADAPCP, he tested positive for marijuana use again in September 1983.  He was determined to be a rehabilitative failure and was not recommended for continued military service.  

4.  Accordingly, separation proceedings were initiated against the applicant under the provisions of Army Regulation 635-200, chapter 9, for drug abuse – rehabilitative failure.  He was discharged under these provisions and was furnished a GD, under honorable conditions.   

5.  He has provided no evidence, and there is none of record, to show that the discharge he received from the Army in 1983 was unjust, inequitable, or improper.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.  He is advised that he should contact his local VA Education Counselor to learn more about what benefits his GD entitles him to. 
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)                                         AR20110013778





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ABCMR Record of Proceedings (cont)                                         AR20110013778



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