IN THE CASE OF:	  

		BOARD DATE:	 25 September 2014 

		DOCKET NUMBER:  AR20140003349 


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, in effect, an upgrade of his under honorable conditions, general discharge (GD) to an honorable discharge (HD).

2.  The applicant states:

   a.  his discharge is inequitable because it is based on one isolated incident out of 54 months of service with no other adverse actions; and

	b.  he would like to use some of his Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 25 February 1982.  He was trained in and awarded military occupational specialty 11B (Infantryman).

3.  On 18 June 1986, the applicant was issued a Letter of Reprimand (LOR) for having suggested that two Soldiers serving in the rank of private assault and beat-up another Soldier in his squad who committed a disciplinary offense.

4.  His record includes a DA Form 4856-R (General Counseling Form), dated 1 July 1986.  It shows he was counseled for the following acts of indiscipline:

* a lack of leadership ability and performance of duty as a Noncommissioned Officer (NCO)
* a prior counseling for his actions that were unbecoming an NCO and his receipt of an LOR
* failing to be at his proper place of duty while assigned as the NCO in charge of the Land Navigation Site, in that he departed without authority for 3 - 4 hours, leaving his subordinates unsupervised
* use and abuse of illegal drugs

5.  Headquarters, I Corps and Fort Lewis, Memorandum for Record, dated 
11 August 1986, shows the applicant was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), on 2 July 1986.  On 
6 August 1986, the ADAPCP staff and rehabilitation team met and determined:

	a.  the applicant had not made satisfactory progress toward achieving the criteria for successful rehabilitation in that he continued to use/abuse cocaine and cannabis;
   
   b.  further rehabilitation efforts in a military environment were not justified in light of the applicant’s lack of progress; and
   
   c.  the applicant’s discharge from the military should be effected.

6.  On 14 August 1986, the applicant underwent a mental status evaluation that showed:
   
* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he had the mental capacity to understand and participate in separation proceedings

7.  On 10 September 1986, the commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9, for ADAPCP rehabilitation failure.  He indicated the applicant's failure to comply with the ADAPCP treatment plans and goals and his continued use of cocaine and cannabis as the basis for the proposed elimination action.

8.  On 10 September 1986, having been advised of the basis of the contemplated separation action and of the effects of a GD, the applicant declined consultation by counsel and to submit a statement in his own behalf.

9.  On 12 September 1986, the separation authority approved the recommendation for discharge and directed the applicant be issued a General Discharge Certificate.

10.  Accordingly, on 18 September 1986, the applicant was issued a GD under honorable conditions.  The DD Form 214 issued to him shows he was discharged under the provisions of Army Regulation 635-200, chapter 9, by reason of “Drug Abuse-rehabilitation failure.”

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

12.  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 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.  At the time of the applicant’s separation an honorable or GD was authorized.

	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 contends his GD should be upgraded to an HD to allow him to use his VA benefits and because he only had one isolated incident during 54 months of military service.  These claims are insufficiently mitigating to grant the requested relief.

2.  The evidence of record clearly shows a disciplinary history of multiple indiscretions.  The applicant was ultimately declared a rehabilitation failure and was discharged accordingly.  Absent evidence to the contrary, the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Further, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  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)                                         AR20140003349



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ABCMR Record of Proceedings (cont)                                         AR20140003349



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