IN THE CASE OF:	  

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130009810 


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 to an honorable discharge.

2.  The applicant states, in effect, he failed one urinalysis and was given nonjudicial punishment.  He passed drug rehabilitation, but he was discharged for drug rehabilitation failure; however, he never had a second offense.  He believes his discharge was unjustified.

3.  The applicant provides no additional information.

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 31 October 1984, with prior Army National Guard service, the applicant enlisted in the Regular Army in the rank of private two/E-2.  His record shows he was not advanced in rank during his active duty service.

3.  He received counseling for repeatedly failing to perform to standard and for failing to meet Army height and weight standards.

4.  On 26 July 1985, he accepted nonjudicial punishment for wrongfully using cocaine.

5.  On 22 August 1985, he accepted nonjudicial punishment for failing to go at the prescribed time to his appointed place of duty and for making the false official statement "I am going to the Alcohol and Drug Abuse Prevention and Control Program [ADAPCP]."

6.  On 23 August 1985, he was counseled that he had been declared a failure of the drug and alcohol rehabilitation program.

7.  A memorandum, subject:  Summary of ADAPCP Rehabilitation Efforts, dated 27 August 1985, shows the applicant's company commander, in consultation with the ADAPCP staff, determined the applicant had failed to comply with treatment plans and goals.  It shows in remarks that his duty performance was poor, by evidence of him missing formations and showing no effort to get off the over-weight program.  In view of the aforementioned, his commander had recommended elimination from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9.  This memorandum shows he was command referred to the ADAPCP on 23 July 1985 for a primary substance abuse of cannabis.  

8.  On 20 September 1985, his company commander formally notified him of the initiation of separation action for alcohol and drug rehabilitation failure under the provisions of Army Regulation 635-200, chapter 9, and that he was recommending a general discharge.  

9.  The applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him for alcohol or other drug abuse rehabilitation failure under the provisions of Army Regulation 635-200, chapter 9, and the effect of any action taken by him in waiving his rights.  He acknowledged receipt of the Letter of Notification of initiation of action to separate him.  He submitted a statement indicating he was from a patriotic family and liked the Army.  He admitted he made very bad errors.

10.  On 30 September 1985, the applicant's company commander stated that, in consultation with the ADAPCP Rehabilitation team, he had determined the applicant was a rehabilitation failure.  Accordingly, he recommended the applicant's immediate discharge under the provisions of Army Regulation
635-200, chapter 9.

11.  On 15 October 1985, the separation authority approved the recommendation to discharge the applicant and directed that he be given a general discharge.  On 21 October 1985, he was discharged as directed. 

12.  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.

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

2.  The record shows he was discharged as a rehabilitation failure primarily because he did not participate fully in the ADAPCP; his duty performance was poor, by evidence of him missing formations and showing no effort to get off the over-weight program.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.  

3.  Once he had been placed in the ADAPCP, he was obligated to meet program requirements.  His failure to do so constituted a failure to meet the standards of acceptable conduct and performance of duty for Army personnel, which warranted a general discharge.  There is no evidence of mitigating factors that would support changing that decision now.

4.  In view of the foregoing, there is an insufficient basis upon which to grant the 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)                                         AR20130009810



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ABCMR Record of Proceedings (cont)                                         AR20130009810



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