IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140014833 


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 her general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

	a.  Recently she applied for a program for veterans and military families focused on women Veterans by providing tools to become entrepreneurs.  Much to her surprise, she was not accepted for the program due to her discharge status.  She had no idea that her discharge was not considered honorable and could affect her ability to participate in Veterans organizations.  Based on that, she is requesting her discharge be upgraded to honorable.

	b.  The incidents leading to her discharge occurred at Fort Belvoir, VA, where she was stationed.  Her military occupational specialty (MOS) was 91A (Medical Specialist) and she was an allergy and immunology technician.  From her training at Walter Reed Medical Center, Washington, DC, to her duty station at Fort Belvoir, she was professional and committed to providing excellent health care to the military community.  She was valued as a knowledgeable team member of a busy clinic serving many civilians and service members in the area. 

	c.  Her record shows she failed three drug tests; however, she believes the second test was improper and inaccurate because of it was given shortly after the first and was considered a separate incident.  The first failed drug test was an isolated incident and her records show that throughout her service she had no disciplinary problems.
	d.  In 1986 or 1987, Headquarters issued a notice that the Army was discharging individuals 2 months early if they had not reenlisted and this moved her discharge date to July 1987.  However, because of the failed drug tests she was discharged in June 1987 instead.

	e.  In February 1987, when she received the results of the last failed drug test, she immediately sought legal counsel.  After reviewing the circumstances, she was advised to "let it go" because her appeal hearing would not go through before her expected discharge date of September 1987.  In addition, the Army was looking for reasons to discharge people early in an effort to save money.

	f.  Being young and inexperienced, she did what her legal counsel recommended and signed where she was told to sign not knowing the repercussions of receiving a general discharge.  Her commander also told her not to worry because her discharge would automatically be changed to honorable and she would receive another DD Form 214 (Certificate of Release or Discharge from Active Duty) in a few months with the automatic upgrade.  Obviously that never happened.

	g.  She was proud to have served her country and she did so with honor, never putting anyone's life in danger because of wrongdoing.  She comes from a family of Soldiers serving in various branches of the military all the way back to the American Revolution.

3.  The applicant provides her DD Form 214; two pages from her discharge packet; and New York Times newspaper article, published on 12 January 1987, titled Army is Speeding up Discharges to Limit Costs in Budget Squeeze.

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 26 September 1984 and she held MOS 91A.  On 28 February 1985, she was assigned to the U.S. Army Medical Department Activity (USAMEDDAC), Fort Belvoir.

3.  On 4 April 1986, she received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana on or about 4 March 1986.

4.  On 29 April 1986, she was enrolled in the Fort Belvoir Alcohol and Drug Abuse Prevention Control Program (ADAPCP) as a command referral for testing positive for marijuana on a urinalysis test.  She completed Track 1 of the program and was released from the program on 8 May 1986.

5.  On 23 May 1986, she tested positive on a urinalysis test and she was reenrolled in ADAPCP on 23 July 1986.  On 6 February 1987, she tested positive on another urinalysis test.

6.  On 10 April 1987, by memorandum, the Clinical Coordinator, ADAPCP, Fort Belvoir Community Counseling Center, provided the applicant's command with her rehabilitation status.  The Coordinator stated she was initially evaluated on 29 April 1986 for testing positive for marijuana on a urinalysis test.  Treatment goal was abstinence.  She had been counseled and cautioned concerning her continued drug use.  She had demonstrated an unwillingness and inability to discontinue drug use in order to meet the goal of abstinence.  Her continued drug use resulted in two additional positive urinalysis tests on 23 May 1986 and 6 February 1987.  She was refusing to follow the treatment goal of abstinence.  The Counseling Center supports the commander in a decision of separating her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9, for a repeat positive urinalysis tests.  Her therapeutic progress remained unsatisfactory.

7.  On 7 May 1987, her immediate commander advised her that she was initiating separation action against her under the provisions of Army Regulation 635-200, chapter 9, by reason of drug abuse rehabilitation failure.  She stated the specific reasons were her inability or unwillingness to refrain from the use of drugs and her two additional positive urinalysis tests.  Due to her continued drug use, she was determined to be a rehabilitative failure.  The commander further stated she was recommending the applicant be given a general discharge, under honorable conditions.

8.  On 7 May 1987, she acknowledged receipt of the proposed separation action. She subsequently consulted with legal counsel and she was advised of the basis for the contemplated separation action, the effects on future enlistment in the Army, the possible effects of a general discharge, and the procedures and rights available to her.  She declined to request treatment in a Veterans Administration (VA) medical center.

9.  In a statement submitter on her own behalf, dated 15 May 1987, the applicant requested she receive an honorable discharge.  She stated, in part, when she was referred to ADAPCP she began to use the facilities to learn and grow from the therapy as much as possible.  She did not feel that ADAPCP deals with or talks about marijuana or its physical and mental defects; it dealt more with the individuals who had a drinking problem.  Although it was detected that she used marijuana, she did not go out of her way to look for it or even to buy it.  Her problem was that marijuana was easily available to her through her family and friends which made it extremely hard for her to totally abstain from the temptation of using it. 

10.  On 18 May 1987, the separation authority approved her discharge and directed the issuance of a General Discharge Certificate.  On 5 June 1987, she was discharged accordingly.

11.  The DD Form 214 she was issued shows she was discharged under the provisions of Army Regulation 635-200, chapter 9, by reason of drug abuse - rehabilitation failure, with an under honorable conditions characterization of service. 

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 9 contained the authority and outlined the procedures for discharging individuals because of alcohol or other drug abuse.  A member who had been referred to the Army's ADAPCP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts were no longer practical.  The individual could be issued an honorable or general, under honorable conditions discharge.

14.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant received NJP on 4 April 1986 for wrongfully using marijuana and she was subsequently enrolled in ADAPCP.  She tested positive for the use of marijuana a second time on 23 May 1986 and again on 6 February 1987.  Accordingly, her commander initiated separation action against her for being a drug abuse rehabilitation failure.

2.  Her separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  Notwithstanding her contention that she was told her discharge would be automatically upgraded, the Army has never had a policy of automatically upgrading discharges.  In addition, the ABCMR does not grant requests for an upgrade of a discharge for the purpose of making the applicant eligible for Veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  The applicant's record of misconduct clearly did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, she is not entitled to an honorable discharge.

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)                                         AR20140014833





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ABCMR Record of Proceedings (cont)                                         AR20140014833



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