IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120008841 


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 discharge from general to honorable.

2.  He states he believes at the time of his discharge he was too immature to understand his actions or choices with regard to his military career.  It is the thing he regrets most in his life.  If he had to do it over again, he would have stayed in the Army.  His mistake has been a huge burden on him.  He loves his country and supports the Armed Forces.  He works for a contractor at Fort Carson, CO, and he would appreciate the chance to explore other work opportunities as an Army civilian.

3.  He provides a partial copy of 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 was born on 14 November 1969.  He enlisted in the Regular Army on 14 June 1988.  After completing initial entry training, he was awarded military occupational specialty 52C (Utility Equipment Repairer).  

3.  On 2 June 1989, his commander imposed nonjudicial punishment against him under the provisions of Article 15, Uniform Code of Military Justice, for the following offenses committed on 5 May 1989:

* failing to obey a lawful general regulation by wrongfully possessing drug paraphernalia 
* possession of 3 grams of hashish
* wrongfully using hashish

4.  On 15 June 1989, the Clinical Director, Darby Community Counseling Center (CCC), Nuernberg (Germany) Military Community, responded by memorandum to a request from the applicant's commander for a synopsis of the applicant's rehabilitation efforts in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  

	a.  The Clinical Director stated the applicant was medically referred to Darby CCC in March 1989 following an alcohol-related incident.  She stated, on 8 May 1989, the command informed the CCC the applicant was apprehended by German police and charged with possession of hashish.  On 9 May 1989, a command-directed urinalysis found positive results for tetrahydrocannabinol [THC], which is a psychoactive substance present in marijuana.  

	b.  The director stated the applicant's progress in group counseling sessions had been minimal and he refused to attend Alcoholics Anonymous as required by his treatment plan.  He had shown little motivation to change and further rehabilitation efforts within the framework of Army Regulation 600-85 (ADAPCP) were not practical.

   c.  The Darby CCC supported separation from the service under the provisions of chapter 9 or 14, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  

5.  On 20 July 1989, the applicant's commander informed him he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 9, for drug and/or alcohol abuse.  His commander stated, in effect, the proposed action was based on his unsatisfactory work performance and conduct and his lack of progress in ADAPCP.  His commander informed him he was recommending he receive a general discharge.  

6.  On the same date, the applicant acknowledged he had been advised of the basis for the contemplated action to separate him for drug and alcohol abuse under the provisions of Army Regulation 635-200, chapter 9, and its effects; the rights available to him; and the effect of any action taken by him in waiving his rights.  He waived his right to counsel and he did not make statements on his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  

7.  On 28 July 1989, the separation authority approved the recommendation to separate him under the provisions of Army Regulation 635-200, chapter 9, and directed he be issued a General Discharge Certificate.  His DD Form 214 shows he was discharged in accordance with the separation authority's directive on 17 August 1989.  He completed 1 year, 2 months, and 4 days of active military service.

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

9.  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 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.

	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 evidence of record does not support the applicant's request for an upgrade of his discharge to honorable.

2.  He engaged in behavior that led his chain of command to conclude that he failed to comply with ADAPCP, which warranted discharge under the provisions of Army Regulation 635-200, chapter 9.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record shows he was 19 years of age when his chain of command determined he had failed to successfully participate in ADAPCP.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The separation authority could have directed that he receive an honorable discharge, but did not do so.  It must be presumed the separation authority considered his overall record and did not find his service sufficiently meritorious to warrant an honorable discharge.  The available records support the separation authority's decision.  

5.  There is no evidence of inequity or injustice in the discharge he received.  Therefore, he is not entitled to 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)                                         AR20120008841



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ABCMR Record of Proceedings (cont)                                         AR20120008841



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