IN THE CASE OF:	  

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130017151 


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 characterization of service from under honorable conditions (general) to honorable.

2.  The applicant states he was advised that his characterization of service would be upgraded after a period of time.  He believed his upgrade had already occurred until he began working at his current place of employment.  His characterization of service is preventing him from progressing in his job.

3.  The applicant provides no additional 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 on 13 March 1984 and held military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  His record contains a letter of reprimand (LOR), dated 26 June 1985 showing he was reprimanded because the urine sample he provided on 17 April 1985 tested positive for marijuana (THC).

4.  On 29 October 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana.

5.  His record contains a DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Client Intake Record), dated 2 December 1985 showing his referral to the program was command directed.  This form shows he had a problem with cannabis.

6.  His record contains a DA Form 4466 (ADAPCP Client Progress Report), dated 3 February 1986 showing he was released from the program for satisfactory completion.

7.  His record contains a DA Form 5180-R (Urinalysis Custody and Report Record), dated 17 July 1986 which shows his urine specimen tested positive for THC.

8.  On 19 August 1986, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongful use of marijuana.

9.  His record contains a Standard Form (SF) 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 21 August 1986 showing he had been diagnosed with drug abuse and was classified as a rehabilitative failure.  These forms also show he was medically qualified for administrative separation. 

10.  His record contains a letter issued on, 22 August 1986, by the clinical director of the drug rehabilitation program who stated:

	a.  The applicant was enrolled in ADAPCP on 2 December 1985 as a result of a positive test for THC.

	b.  He was placed in Track I education and awareness and participated in one urinalysis.  This urinalysis resulted in negative results and he was disenrolled from ADAPCP on 3 February 1986.
	c.  He was re-enrolled in ADAPCP on 7 August 1986 as a result of a positive test for THC and he was placed in the Track II program.

	d.  He failed to utilize the ADAPCP principles and his potential for rehabilitation is deemed poor.

11.  On 8 September 1986, his company commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 9, Army Regulation 635-200 (Personnel Separations Enlisted Personnel) for alcohol rehabilitation failure with either an honorable of a general discharge.  The applicant was advised of his rights.

12.  On 8 September 1986 after consulting with counsel, he acknowledged receipt of the proposed action to separate him under the provisions of Army Regulation 635-200, chapter 9, for rehabilitation failure.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He requested counsel and elected not to submit a statement in his own behalf.

13.  On 10 January 2011, the separation authority approved the applicant's discharge and directed the issuance of a general discharge.

14.  He was discharged from active duty on 4 October 1986 under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure with an under honorable conditions (general) characterization of service.  He was credited with 2 years, 6 months, and 22 days of net active service.

15.  There is no indication that he applied to the Army Discharge Review Board (ADRB) to request an upgrade of his characterization of service within that boards 15-year statute of limitations.

16.  Army Regulation 635-200, chapter 9 provides the authority and outlines the procedures for discharging enlisted personnel for alcohol or other drug abuse rehabilitation failure.  Discharge is based on alcohol or other drug abuse such as the illegal, wrongful, or improper use of any controlled substance; alcohol, or other drug when the member is enrolled in ADAPCP and/or the commander determines that further rehabilitation efforts are not practical, rendering the member a rehabilitation failure.  This determination will be made in consultation with the rehabilitation team.  A member who: is enrolled in 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 when there is a lack of 

potential for continued Army service and rehabilitation efforts are no longer practical, or long-term rehabilitation is necessary and the member is transferred to a civilian medical facility for rehabilitation.  The service of members discharged under this section will be characterized as honorable or under honorable conditions.  

17.  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.

18.  Army Regulation 635-200, section III states, that there is no automatic upgrading by any government agency for a service member who receives a less than honorable discharge certificate or a character of service that is under other than honorable conditions.  Upgrading is considered only upon application to the ABCMR or the ADRB.  Consideration by either of these boards does not guarantee upgrading of a discharge certificate that is less than an honorable discharge certificate or of a character of service that is under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  A service member's characterization is not automatically upgraded after a set period of time.  Service members must submit an official request via application to the ADRB or the ABCMR requesting an upgrade.  Furthermore, once the application is received the ADRB or ABCMR base the decision to grant or deny application based on the individual merits of the case.

2.  The evidence of record confirms the applicant's discharge was accomplished in accordance with applicable regulations.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  The evidence of record show the applicant received an LOR of marijuana use, two instances on NJP for marijuana use, several positive urinalyses for THC, and was on ADAPCP Track II.  During his last stint at ADAPCP he was removed from the program as a rehabilitative failure when his urine tested positive for THC.  Based on his record of indiscipline, his service clearly did not rise to the level of a fully honorable discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130017151





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ABCMR Record of Proceedings (cont)                                         AR20130017151



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