IN THE CASE OF:	  

		BOARD DATE:	   6 August 2013 

		DOCKET NUMBER:  AR20120022856 


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 be upgraded to honorable.

2.  The applicant states his discharge should be upgraded for the following reasons:

	a.  he was not afforded the opportunity to successfully complete a course for rehabilitation;

	b.  he was never actually found to have had a positive urinalysis;

	c.  he was never found to have bought/sold or otherwise possessed any illegal drugs;    

	d.  he was pressured by his company commander and first sergeant to accept his discharge or become part of an ongoing investigation involving the apparent suicide of their drug/alcohol noncommissioned officer (NCO);

	e.  he was not properly counseled by his chain of command as to the ramifications of this type of discharge; 

   f.  he was told his discharge would automatically be changed to an honorable discharge after 6 months;

	g.  he was an exceptional Soldier, he had acquired the necessary points, completed the Primary Leadership Course (PLC), and he had passed the board for promotion to E-5;   

	h.  his military records will also show he had received numerous letters of commendation from both his tours of duty;

	i.  he received only one Article 15 during his entire period of service for a relatively minor offense; and

	j.  he completed his first tour of duty and received an honorable discharge.

3.  The applicant provides no additional documentary evidence.

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 (RA) on 9 October 1979 and served as a carpentry and masonry specialist.  He was honorably released from active duty on 8 October 1982 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

3.  He again enlisted in the RA, on 13 September 1983 for a period of 3 years.  He completed his training and was awarded military occupational specialty 19D (Cavalry Scout).  He completed PLC in 1984.  On 2 August 1984, he was recommended for promotion to E-5.  

4.  On 14 November 1984, nonjudicial punishment (NJP) was imposed against him for failure to go at the time prescribed to his appointed place of duty and making a false official statement.


5.  Records show: 

	a.  on 5 December 1984, he was screened by the Fort Sill Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) as a self referral for marijuana abuse;  

	b.  he had two urinalysis tests since September 1984, but the results had not been received;

	c.  the applicant told the ADAPCP counselor that he had been using marijuana daily, he had used it on 5 December 1984, and he would not stop using marijuana; and

	d.  a consultation with his unit commander and the ADAPCP counselor was held on 5 December 1984.  It was determined that enrollment into the ADAPCP was not feasible. 

6.  On 17 January 1985, he was notified of his pending separation under the provisions of chapter 9, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for drug abuse.  The unit commander cited:

* on 5 December 1984, the applicant was screened at the ADAPCP for marijuana abuse
* his urinalysis test for September 1984 was negative and the results for the October 1984 test had not been received
* the applicant told the ADAPCP counselor he used marijuana daily and he would not stop using it
* it was apparent that the applicant either lacked the desire or the ability to be rehabilitated
* the ADAPCP counselor and the unit commander determined future rehabilitative efforts were not practical

7.  On 18 January 1985, the applicant consulted with counsel and acknowledged receipt of the notification letter.  He was also advised of the basis for the contemplated separation, its effects, and the rights available to him.  He elected not to submit a statement in his own behalf.  

8.  On 18 January 1985, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.  



9.  On 24 January 1985, he was discharged under the provisions of chapter 9, Army Regulation 635-200, due to drug abuse rehabilitation failure with an under honorable conditions discharge (general).  He had served 1 year, 4 months, and 12 days of creditable active service during the period under review.  

10.  There is no evidence in the available records that show the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

11.  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.

12.  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.

13.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not afforded the opportunity to successfully complete a course for rehabilitation.  The evidence shows he told the ADAPCP counselor he would not stop using marijuana on 5 December 1984.  As a result, the ADAPCP counselor determined that future rehabilitative efforts were not practical.  The governing regulation states 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.  

2.  His contention that he was never actually found to have had a positive urinalysis was noted.  However, the evidence shows he told the ADAPCP counselor he used marijuana daily.  

3.  He also contends he was never found to have bought/sold or otherwise possess any illegal drugs.  However, he was not discharged for possession or distribution of illegal drugs.     

4.  He contends he was pressured by his company commander and first sergeant into accepting the type of discharge he received or he would become a part of an ongoing investigation involving the apparent suicide of their drug/alcohol NCO.  However, there is no evidence and he provides no evidence to support this contention.

5.  He further contends he was not properly counseled by his chain of command as to the ramifications of this type of discharge.  He was also told his discharge would automatically be changed to an honorable discharge after 6 months.  However, the evidence shows he consulted with counsel on 18 January 1985 concerning the ramifications of his discharge and the rights available to him.  In addition, a discharge upgrade is not automatic.

6.  His remaining contentions, which included his military performance and prior honorable discharge, were carefully considered.  However, his record of service during his last enlistment included one NJP and his refusal to stop using marijuana (inability or refusal to participate in, cooperate in, or successfully complete the ADAPCP).  As a result, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

7.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

8.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  

9.  In view of the foregoing, there is no basis for granting the applicant's requested relief.



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)                                         AR20120022856



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ABCMR Record of Proceedings (cont)                                         AR20120022856



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