IN THE CASE OF:	  

		BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140001026 


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.

2.  The applicant states:

* he had just gotten married, had one child, was expecting another at the time he entered the Army
* he was unable to pursue a degree based on his job in field artillery and subsequent field duty assignments
* his performance deteriorated when he lost his two children in a divorce and the command would not let him out of his reenlistment to pursue custody of his children
* he was repeatedly denied a hardship discharge and he became distraught
* after his positive urinalysis test, he was never sent to any type of drug rehabilitation
* his divorce and his release from active duty took a toll on him and in 2001, he found himself drinking a lot and eventually had to pay for alcohol rehabilitation
* he defers to counsel 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* Item 24 (Character of Service), he received an honorable characterization of service
* Item 25 (Separation Authority), he was separated under the provisions of Army Regulation 635-200  (Personnel Separations - Enlisted Personnel), chapter 5
* Item 26 (Separation Code), he was issued a separation code commensurate with an honorable discharge under the provisions of Army Regulation 635-200, chapter 5
* Item 27 (Reenlistment Code), he was issued RE Code "1"
* Item 28 (Narrative Reason for Discharge), his narrative reason was corrected to read "Secretarial Plenary Authority"

2.  Counsel states:

* the applicant was separated with a general discharge for a positive urinalysis
* he was never shown a lab report
* he never met with any legal person, noncommissioned officer (NCO), or commissioned officer to advise him on the Article 15 or separation
* the applicant's lack of legal advice can only be remedied with a discharge upgrade
* months prior to the positive urinalysis, the applicant requested a hardship discharge due to family problems
* his chain of command was unwilling to assist him with his family problems
* the applicant was denied any measure of due process when he received no legal advice and was not provided the evidence against him

3.  Counsel provides:

* the applicant's self-authored letter
* the applicant's DD Form 214
* the applicant's DA Form 2-1 (Personnel Qualification Record)
* the applicant's DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))

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 13 October 1981, the applicant enlisted in the Regular Army.  He was trained in and awarded military occupational specialty 13B (Cannon Crewman).

3.  His disciplinary history includes his acceptance of nonjudicial punishment, under the provisions of Article 15 of the UCMJ on 5 November 1985 for wrongfully using marijuana on or about 8 July 1985 and 8 August 1985.  

	a.  The DA Form 2627 states in paragraph 2: "If you do not want me to dispose of this report of misconduct under Article 15, you have the right to demand trial by court-martial instead.  In deciding what you want to do you have the right to consult with legal counsel located at Building 7626.  You now have 48 hours to decide what you want to do."

	b.  The DA Form 2627 states in item 3: "Having been afforded the opportunity to consult with counsel, my decisions are as follow:"  He initialed block "b," indicating he did not demand trial by court-martial in the Article 15 proceedings.  

4.  On 3 December 1985, the Social Service Assistant and the Clinical Director rendered a "Rehabilitation Failure Statement for Chapter 9."  The statement provides the following details:

   a.  The applicant was enrolled in the Fort Riley Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 8 September 1985.  He was enrolled in Track 1A, based on his arrest for driving under the influence (DUI). 
   
   b.  He denied the need for treatment on his intake interview and had no motivation.  He attended Pawnee Mental Health Classes on 10 October 1985. 
   
   c.  He provided urinalysis samples that tested positive on 8 August 1985 and 10 December 1985.   
   
   d.  In consultation between ADAPCP staff and the company commander, it was determined that the applicant was a rehabilitative failure based on the criteria of sub-standard duty performance and his continued abuse of alcohol and other drugs.  He clearly demonstrated recalcitrance to the degree that further rehabilitative efforts in the military environment would not result in return to full effective duty.

5.  On 16 December 1985, the applicant underwent a mental status evaluation and he was determined to be mentally responsible and had the mental capacity to understand and participate in board proceedings. 

6.  On 6 January 1986, his company commander formally notified him of his intent to initiation separation action under the provisions of Army Regulation  635-200, chapter 9, based on his rehabilitation failure. The applicant signed the notification letter acknowledging that he understood that the military legal counsel for consultation would be available to assist him upon request. 

7.  On 6 January 1986, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 9, its effects and the rights available to him, and of the effect of any action taken by him in waiving his rights.  He said statements in his behalf were submitted; however, such statements were not contained in his available file.  Additionally, he requested a consulting counsel and to be represented by counsel.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge.  

8.  The senior defense counsel signed the form stating "Having been advised by me of the basis for his contemplated separation and its effect, the rights available to him and the effect of a waiver of his rights the (Applicant) personally made the choice indicated in the foregoing statement."

9.  On 7 January 1986, the separation authority approved the recommendation to discharge the applicant and directed he receive a General Discharge Certificate. 

10.  On 10 February 1986, he was discharged accordingly.  His DD Form 214 shows he was credited with completing 4 years, 3 months, and 28 days of active service.  It also shows in:

* Item 24 - Under Honorable Conditions
* Item 25 - Army Regulation 635-200, chapter 9
* Item 26 - "JPC"
* Item 27 - "3"
* Item 28 - Drug abuse - rehabilitation failure


11.  His record is void of any evidence that shows he applied for a hardship discharge.

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 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 applicant's counsel argues, in effect, that the applicant's discharge should be upgraded because the applicant was denied any measure of due process when he did not receive any legal advice and he was not provided the evidence against him.  

2.  On 8 September 1985, he was enrolled in the ADAPCP, based on his previous arrest for DUI.  On 8 August 1985, he provided a urinalysis sample that tested positive.  Based on that positive result, he received an Article 15, during which time he was afforded the opportunity to consult with counsel prior to electing not to be tried by court-martial.


3.  On 10 December 1985, provided a second urinalysis sample that tested positive.  Accordingly, he was referred to the mental health clinic for evaluation.  On 16 December 1985, he was found to be mentally responsible and had the mental capacity to understand and participate in board proceedings. 

4.  In his board proceedings, he acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 9, and its effects, of the rights available to him, and of the effect of any action taken by him in waiving his rights.  The record shows he was discharged as an ADAPCP rehabilitation failure.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.  

5.  Both he and counsel contend he was repeatedly denied a hardship discharge; however, neither he nor counsel provided evidence that shows he sought counseling and/or applied for a hardship discharge to resolve any family problems he was experiencing.  Therefore, his contention is not supported by the available evidence.

6.  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.
   
7.  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)                                         AR20140001026





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ABCMR Record of Proceedings (cont)                                         AR20140001026



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