IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120001728 


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 discharge under honorable conditions discharge to an honorable discharge.

2.  The applicant states his drug abuse only happened once in a 6-year career.  He believes his exemplary service far outweighs his one infraction.  He believes the discharge should be upgraded.  He cannot change the way he was back then.  He was sick and he needed help.  He asks this Board to allow him to live his life with honor.  His record was good until his drug issue.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 records show he enlisted in the Regular Army on 27 October 1981 and held military occupational specialty 43E (Parachute Rigger).  He executed a reenlistment on 24 September 1984.  

3.  His records show he served in Alaska from November 1981 to May 1983.  He was awarded or authorized the he Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal, and Parachutist Badge.  

4.  On 20 May 1986, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for two instances of selling military property to a pawn shop.

5.  On 27 May 1986, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana. 

6.  On 9 June 1986, he was enrolled in the Army Drug and Alcohol Prevention and Control Program (ADAPCP) for drug abuse.  He was recommended for treatment and rehabilitation.  He initially attended group counseling; however, he did not show sufficient progress.

7.  On 26 June 1986, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his demonstrated apathy toward achieving acceptable standards.  He stated the applicant had one prior instance of pawning military equipment and one instance of illegal drug use.  He demonstrated poor conduct and demonstrated an inability to comply with laws, regulations, policies, and standards of the Army.  He was provided with a copy of the bar, but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by his battalion commander.

8.  On 15 October 1986, the applicant's immediate commander declared him a rehabilitation failure and on 17 October 1986, the Fort Bragg Alcohol and Drug Officer concurred and stated the applicant was initially enrolled on 9 June 1986.  He was making all group sessions and completed the Chemical Use Education Series.  On 4 August 1986 he received a second positive urinalysis for marijuana.  He was given an ample opportunity for rehabilitation but appeared unwilling to take advantage of the opportunities.  As per his company commander, he was not a prospective candidate for residential treatment.  His continued substance abuse made him a poor candidate for further military service.  He was aware of the Army's policy regarding alcohol or drug abuse and the ramification of rehabilitation failure.  

9.  On 31 October 1986, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation 635-200 (Personnel Separations) for ADAPCP failure.  The immediate commander cited the specific reason as the applicant's unacceptable cooperation in the ADAPCP and continued use of marijuana.  Also, past incidents which indicated that further rehabilitative actions would prove unsuccessful included a bar to reenlistment, two instances of NJP, and numerous counseling statements.  He recommended a general discharge.  

10.  On 31 October 1986, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for ADAPCP failure, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and he elected not to submit a statement in his own behalf.  He further indicated:

* he understood he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood that he could make an application to the Army Discharge Review Board or the ABCMR for an upgrade; however, an act of consideration does not imply that his discharge would be upgraded

11.  Subsequent to the applicant's acknowledgement, on 4 November 1986, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of ADAPCP rehabilitation failure.  He recommended a general discharge.

12.  Consistent with the chain of command's recommendation, the separation authority approved the applicant's discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed the applicant be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 19 November 1986.

13.  The DD Form 214 he was issued confirms he was discharged on 19 November 1986 under the provisions of chapter 9 of Army Regulation 635-200 by reason of "drug abuse – rehabilitation failure" with a characterization of service of general under honorable conditions.  This form further shows he completed a total of 5 years and 23 days of creditable active military service.

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

15.  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 Soldiers 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.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in an entry-level status and an uncharacterized description of service is required.

16.  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 evidence of record shows he exhibited a drug abuse problem and he was provided with the opportunity to overcome his problem through counseling and referral to and enrollment in the ADAPCP.  However, he showed poor rehabilitation potential.  He was therefore declared an ADAPCP rehabilitation failure and accordingly his immediate commander initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  Based on his record of indiscipline and subsequent ADAPCP rehabilitation failure, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his service does not warrant an honorable discharge.

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)                                         AR20120001728



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ABCMR Record of Proceedings (cont)                                         AR20120001728



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