BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120019284 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states he believes he did everything in his power to stay clean.  At the time he was going through a lot of emotional distress with his son being hurt.  He also feels that he was not supported enough with his struggles to stay clean.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Form 21-4138 (Statement In Support of Claim), dated 9 March 2012

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 17 September 1981.  He successfully completed basic training and was awarded military occupational specialty 36C (Wire System Installer).

3.  On 27 June 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being drunk and disorderly, resisting being apprehended, and disobeying a lawful order.

4.  On 7 July 1987, the applicant was enrolled in the Alcohol and Drug Abuse and Prevention Control Program (ADAPCP) Track II, after being apprehended for possession of marijuana.

5.  On 5 August 1987, the applicant accepted NJP under Article 15, UCMJ, for wrongfully having a live 5.56mm round in his barracks room and wrongfully using of marijuana.

6.  The applicant's ADAPCP Clinical Supervisor advised the applicant's company commander by memorandum, dated 1 September 1987, that the applicant was a rehabilitation failure for consuming alcohol during ADAPCP enrollment.  

7.  On 26 October 1987, the applicant was notified by his company commander that he was initiating action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, for alcohol or other drug abuse rehabilitation failure.  The reason cited by the commander was the applicant's consumption of alcohol while enrolled in the ADAPCP.

8.  The applicant was further advised that he was being recommended for a general under honorable conditions discharge with the reason for discharge as rehabilitation failure.  He was also advised that this action was suspended for 7 days to give him the opportunity to "request appointment of military counsel, submit a statement on his behalf, or to waive the foregoing rights in writing or by declining to reply within 7 days."


9.  On 16 November 1987, the applicant acknowledged he was advised of the basis for his separation under the provisions of Army Regulation 635-200.  The applicant indicated he was counseled by appropriate counsel and acknowledged he was not entitled to have his case heard by an administrative separation board. The applicant also indicated he would not provide statements on his own behalf, and he requested representation by military counsel.

10.  On 25 November 1987, the applicant was discharged under the provisions of 
chapter 9, Army Regulation 635-200, for drug abuse-rehabilitation failure.  The applicant was issued a General Discharge Certificate.  Records show the applicant had completed a total of 6 years, 2 months, and 9 days of creditable active service at the time of separation with no lost time.

11.  The applicant provided a VA Form 21-4138, dated 9 March 2012.  He states after completing training his first assignment was in Germany where he served two years.  He developed a great liking for the many kinds of beer they had to offer.  In all his efforts to stay on the right path, he would sometimes stray off course.  He started smoking marijuana on top of drinking and he was enrolled in drug rehabilitation twice in Germany.  After leaving Germany he was assigned to Fort Huachuca, AZ.  His first sergeant had it in for him from day one; he felt helpless with no one to turn to.

12.  The applicant states he lost control and started to use drugs and alcohol again because it seemed to be the only way he could escape from reality.  He took a "don't care" attitude which ultimately led to the end of his military career.  Going through rehabilitation twice more did not work.  He may have lost the battle with the first sergeant; he did not lose the battle with drugs and alcohol.  He has been clean and sober for three years and seven months.  He is attending college where he is majoring in culinary arts.

13.  Chapter 5 of Army Regulation 600-85 (ADAPCP) states Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander, in consultation with the ADAPCP staff, determines that further rehabilitation efforts are not practical and that rehabilitation is a failure.  

14.  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 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.
15.  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 shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

2.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  It is commendable that the applicant has stopped using drugs and alcohol, and that he is enrolled in college.  However, his post-service conduct is an insufficient basis upon which to upgrade his discharge.  His record of service shows he received a general under honorable conditions discharge for rehabilitation failure.  He had other incidents of drug/alcohol-related misconduct.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  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)                                         AR20120019284





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ABCMR Record of Proceedings (cont)                                         AR20120019284



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