IN THE CASE OF:    

		BOARD DATE:  11 September 2014  	  

		DOCKET NUMBER:  AR20140001713 


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 discharge under other than honorable conditions to honorable or general under honorable conditions.

2.  The applicant states:

* his discharge was due to misconduct and the use of an illegal narcotic
* he was never offered a treatment program and he was just discharged from the Army
* had he been offered counseling and/or treatment, he would have been able to further serve his country with honor
* he served 2 years and 9 months
* he reached the rank/grade of specialist four (SP4)/E-4 and he performed every duty required of him to standard
* he received positive performance evaluations and counseling statements
* he believes he earned some type of benefits

3.  The applicant provides:

* self-authored statement
* letter from the National Personnel Records Center, St. Louis, MO, dated 10 January 2014
* extracts of his military and medical records



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 29 June 1988.

3.  On 6 June 1990, the applicant attempted to enter Fort Carson, CO, without required property registration.  Military police observed a .25 caliber pistol on the front seat of the vehicle driven by the applicant and a search revealed:

* he had two DD Forms 2 (Uniformed Services Identification Card)
* the vehicle had two partially-burned hand-rolled cigarettes that were later tested and determined to contain tetrahydrocannabinol (THC), the active ingredient in marijuana

4.  The applicant was apprehended and advised of his rights.  He waived his rights and rendered a statement denying the offenses.  He was processed for the following violations and later released to his unit:

* false or unauthorized military pass
* failure to register his vehicle on post
* unlawful possession of a pistol
* failure to register a weapon on post
* wrongful possession of a control substance (marijuana)

5.  A Urinalysis Testing Worksheet, dated 7 June 1990, shows the applicant tested positive for marijuana.

6.  A DA Form 4856 (General Counseling Form), dated 10 September 1990, shows the applicant was arrested on 8 September 1990 for suspicion of selling drugs.

7.  A DA Form 4856-R, dated 11 September 1990, shows the applicant was driving or in physical control of a motor vehicle on 10 July 1990 while his blood alcohol content exceeded the legal limits.  As a result, his installation driving privileges and authorization to operate a government motor vehicle were suspended.

8.  On 12 December 1990, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* wrongfully transporting an unregistered privately-owned weapon onto Fort Carson
* wrongfully using marijuana between on or about 7 May 1990 and 7 June 1990
* wrongfully possessing some amount of marijuana on or about 6 June 1990
* wrongfully possessing another's identification card knowingly on or about 6 June 1990

9.  On 12 December 1990, the applicant was counseled on the initiation of a bar to reenlistment due to pending drug charges off post as well as on post.

10.  A DA Form 3997 (Military Police Blotter), dated 16 December 1990, shows the applicant was cited for:

* failing to dim headlights
* driving a defective vehicle
* failing to provide a valid registration
* driving while under suspended driving privileges

11.  On 15 January 1991, a bar to reenlistment was approved and shows:

* he elected not to submit an appeal
* he was not considered suitable for continued service
* he had pending civil charges for possession and distribution of controlled substances
* he had five checks returned to the Army and Air Force Exchange Services for insufficient funds totaling $140.00 between March and July 1990

12.  On 23 January 1991, the applicant underwent a mental status evaluation and was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and to meet retention standards.  He was cleared for any administrative action deemed appropriate by his command.

13.  On 11 February 1991, the applicant's immediate commander initiated discharge action against him based on his commission of a serious offense.

14.  On 15 February 1991, the applicant's immediate commander submitted a recommendation for the applicant's discharge and stated, in part, that it was not considered feasible or appropriate to accomplish other disposition because rehabilitation would not be in the best interest of the Army as it would not produce a quality Soldier.

15.  On 15 February 1991, the applicant consulted with counsel and he was advised of the basis for the contemplated separation action for commission of a serious offense, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him.

16.  On 27 February 1991, the applicant's brigade commander forwarded the separation action to the general court-martial convening authority with a recommendation for separation under other than honorable conditions.  The assistant staff judge advocate found the separation action legally sufficient.

17.  On 6 March 1991, an administrative separation board was appointed to determine whether the applicant should be discharged for the commission of a serious offense.

18.  On 25 March 1991, the applicant waived consideration of his case by an administrative separation board.

19.  On 1 April 1991, the appointment of the administration separation board was withdrawn and the convening authority approved the applicant's separation for the commission of a serious offense.  He directed the applicant be separated with an under other than honorable conditions discharge.

20.  On 17 April 1991, the applicant was discharged accordingly.  His DD Form 214 shows he completed 2 years, 9 months, and 19 days of active service.

21.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 1-16d(2) states the rehabilitative transfer requirements in chapters 11, 13, and 14 may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.

	c.  Paragraph 3-7a states 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.

	d.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

23.  Army Regulation 600-85, in effect at the time, prescribed policies and procedures needed to implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  It stated, in part, that when the commander determined that duty performance and progress was unsatisfactory and could not justify further rehabilitation efforts in a military environment, discharge from the military service would be affected.  It further stated that ADAPCP services would continue to be provided until the client was separated and that enlisted Soldiers identified as illegally abusing drugs would be processed for separation in accordance with Army Regulation 635-200.

24.  Army Regulation 600-85, paragraph 3-7, pertained to responsibilities of commanders for referral.  It stated that when individuals were identified, voluntarily or involuntarily, as possible alcohol or other drug abuser, their unit commander or designated representative would:

   a.  advise them of their rights under Article 15, UCMJ.  Use of DA Form 3881 (Rights Warning Procedure/Waiver Certificate) was strongly recommended;

   b.  explain the provisions of the limited use policy;

	c.  interview them and inform them of the evidence;

	d.  give them the opportunity to provide additional evidence, including information on drug sources, if they desired (However, such disclosure was strictly voluntary and would not be made a requirement for or any part of treatment or rehabilitation); and

	e.  collect any illegal drugs or drug paraphernalia that the Soldier voluntarily relinquished and turn them over to the local Provost Marshal. 

25.  The unit commander would refer individuals suspected or identified as alcohol and/or other drug abusers, including those identified through urinalysis and blood alcohol tests.  All individual with urine positives would be referred to the ADAPCP for initial screening.  Medical evaluation by a physician was required unless the urine positive was for THC alone.  Soldiers with blood alcohol levels of .05 percent or above while on duty would be referred to the ADAPCP for screening and evaluation.  Soldiers who were referred by the unit commander for an initial interview, regardless of the means of identification, would be referred using the Military Client Referral and Screening Record.  This document must have been signed by the commander.  The initial screening interview would be accomplished by the ADAPCP staff at the earliest opportunity (not to exceed 4 working days) with emergency referrals receiving priority.  

26.  Army Regulation 600-85, paragraph 3-8 pertains to self-referrals.  It stated that the clinical staff would conduct an initial interview with all eligible personnel who self-referred to the ADAPCP counseling center for assistance.  During the initial interview, the clinician would advise Soldiers of their unit commander's role in the rehabilitation process, and provide information about the ADAPCP.  The commander would be part of the rehabilitation program and would be directly involved in the decision of whether rehabilitation was required.  The commander would also provide recommendations for the appropriate rehabilitation track and establish standards of behavior and goals for evaluation of the Soldier's progress in rehabilitation and in the unit.  The ADAPCP staff would contact the commander and coordinate the Soldier's referral, if ADAPCP services were rendered.  After coordination with the Soldier's commander, the referral was processed in the same manner as any other command referral; however, the type of referral would be annotated on the ADAPCP Military Client Referral and Screening Record was a self-referral. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.

2.  Army Regulation 635-200 provides separation authorities with the authority to waive the rehabilitative transfer requirements in chapters 11, 13, and 14 in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  

3.  His misconduct did not involve solely drug abuse.  Further, he could have referred himself to the ADAPCP.

4.  His actions at the time clearly brought discredit upon himself and the Army.  The evidence shows he was properly and equitably discharged in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her character of service.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veterans' benefits should be addressed to the entity granting the benefits.

6.  In view of the foregoing, there is no 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 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)                                         AR20140001713



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ABCMR Record of Proceedings (cont)                                         AR20140001713



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