IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110018368 


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 discharge be upgraded from general under honorable conditions to honorable.

2.  The applicant states the characterization of his service is inequitable and is not consistent with the policies and traditions of the U.S. Army.  He contends that all of his disciplinary problems, civilian and military were a direct result of his continued abuse of marijuana.

	a.  He became addicted to marijuana after entering the U.S. Army.  He tested positive for it use.  He was not given any education to prevent further drug use.  His superiors knew or should have known that he had a problem and needed help.  Therefore, the Army knew of his problem.  He should have been treated for his addiction when his problems first arose.  Instead, his improper course of conduct was allowed to continue.

	b.  He was subsequently told to take another drug test.  He refused to do so and was discharged.  He could have controlled his conduct had he received proper treatment.

	c.  He was still an addict when discharged and his pattern of improper conduct continued as a result of his addiction.  Had he been treated for his substance abuse, that pattern of his life-style could have and should have been corrected while he was still a member of the Armed Forces of the U.S.

	d.  He is now in a residential drug/alcohol treatment facility.  He is getting his life back in order.  An upgrade of his characterization to honorable will greatly improve his work opportunity without the stigma of an under honorable conditions discharge.  He will be able to become a productive member of society.

3.  The applicant provides a copy of a letter from the People in Progress, dated 23 August 2011.

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.  On 14 May 1981, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  On 6 August 1981, the applicant departed Fort Benning, Georgia for duty in Europe.

	a.  On 24 September 1981, he was assigned as a rifleman with Company B, 2nd Battalion, 4th Infantry Regiment.

	b.  On or about 21 March 1982, he was derelict in the performance of his duties by failing to properly clear his weapon.  He accepted nonjudicial punishment.

	c.  On 29 April 1982, he was referred to the Army Drug and Alcohol Prevention and Control Program (ADAPCP) as a result of a positive urinalysis for use of marijuana.

	d.  On 14 September 1982, the Counselor, community counseling Center, stated in a letter advising the applicant's commander that it was determined after screening and clinical evaluation the applicant had been continuously abusing marijuana.  The applicant had received 21 hours of educational training and group counseling weekly.  However, the applicant had a substandard attitude, no motivation and his performance declined.  The applicant also missed various appointments.  Considering these facts, it was the opinion of the counselor that the applicant's prognosis for rehabilitation was poor.  He was returned to his unit for further disposition by his commander.  The clinical director concurred.

	e.  On 4 October 1982, the applicant underwent a mental status evaluation; wherein, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right and capable of participating in the separation processing.

	f.  On 18 October 1982, the applicant's commander initiated an administrative separation action under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations) chapter 9 due to drug abuse rehabilitation failure.

	g.  On 18 October 1982, the applicant was notified of the commander's recommendation to separate him from the service due to his continued drug abuse, substandard, unmotivated attitude and declined duty performance.

	h.  On 18 October 1982, the applicant waived his rights and elected not to make a statement in his own behalf.

	i.  On 28 October 1982, the separation authority directed he be discharged from the Army and issued a General Discharge Certificate.  He was accordingly discharged on 5 November 1982.

4.  The DD Form 214 issued upon his discharge shows he was discharged due to drug abuse - rehabilitation failure.  His character of service is shown as under honorable conditions.  He had attained the rank of private first class, pay grade E-3, and had completed 1 year, 4 months, and 25 days of creditable active duty service.

5.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

6.  The letter from the People in Progress, dated 23 August 2011, as provided by the applicant, states that he entered the program on 15 July 2011 and had completed the first 3 of 12 steps.  He was in the initial 90 days of treatment.  He was described as being very conscientious.  He would be entering the transitional phase of the program and residing in the "sober living facility."  He would receive assistance with his money management and preparation for transition back into society.

7.  Army Regulation 635-200 (Personnel Separations) 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.  At the time of the applicant’s separation an honorable or general discharge was authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded from general under honorable conditions to honorable because he was still an addict when discharged.  He further argues that he could have controlled his conduct had he received proper treatment and education.

2.  The available evidence of record clearly shows that the applicant was placed in ADAPCP on 29 April 1982 and had received 21 hours of educational training and group counseling weekly.  He was released from this program approximately 4 months later when it was determined that his prognosis for rehabilitation was poor.  Therefore, his argument that he was not afforded proper treatment and education is found to be without merit.

3.  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.  The letter he has provided indicates that he has again begun efforts to become a productive member of society.  However, this does not sufficiently mitigate the circumstances of his discharge to warrant an upgrade.

6.  In view of the foregoing, the applicant's request should be denied.



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)                                         AR20110018368





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ABCMR Record of Proceedings (cont)                                         AR20110018368



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