IN THE CASE OF:  	  

		BOARD DATE:  21 May 2015	  

		DOCKET NUMBER:  AR20140017198 


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 under honorable conditions (general) discharge to an honorable discharge.

2.  The applicant states his drug abuse and rehabilitation failure were due to his immaturity and youth.  He has not and he does not use any form of drugs or alcohol. 

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army on 10 July 1979 and he held military occupational specialty 15E (Pershing Missile Crewmember). 
3.  On 22 August 1980, at Fort Sill, OK, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for falsely stating on his sick call slip that he should be placed on indoor duty.  His punishment consisted of a reduction to E-1, forfeiture of pay, and correctional custody facility. 

4.  On 7 August 1981, in Germany he accepted NJP under the provisions of Article 15 of the UCMJ for stealing money from another Soldier.  His punishment consisted of a suspended reduction to E-1 and extra duty. 

5.  He served in Germany from 27 April 1981 to 14 March 1983 and he was promoted to specialist four/E-4 on 1 February 1982.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, Army Good Conduct Medal, Humanitarian Service Medal, Army Service Ribbon, and Overseas Service Ribbon. 

6.  His service record shows he was frequently counseled by his chain of command for various infractions including: 

* Failing to settle his rental agreement
* Failing to pay for damages rendered to a window in a hotel he was renting 
* Writing worthless checks
* Multiple instances of indebtedness
* Having overdue library items
* Failing to make morning formation
* Being found asleep in his room during formation
* Multiple instances of being out of ranks 
* Multiple instances of missing formation
* Disobeying lawful orders

7.  On 8 September 1982, also in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing marijuana.  His punishment consisted of a reduction to E-3, forfeiture of pay, and extra duty and restriction. 

8.  On 24 November 1982, his immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his NJP, numerous negative counseling, inability to make formations, not being at his place of duty, and inability to honor a contract.  The applicant was provided a copy of this bar and he submitted a statement on his own behalf wherein he stated that he is a positive person who can accomplish the mission.  The approving authority ultimately approved the bar. 
9.  On 1 December 1982, his commander permanently disqualified him from the Personnel Reliability Program as he felt the applicant was no longer qualified to perform his duties due to drug possession and use.  

10.  On 6 December 1982, also in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to E-2 and extra duty and restriction. 

11.  Also on 6 December 1982, at a command-directed urinalysis, his urine sample tested positive for illegal drugs. 

12.  On 21 April 1982, a Clinical Director provided the applicant's commander with a synopsis of the applicant's Army Drug and Alcohol Prevention Control Program (ADAPCP) rehabilitation activities.  He stated: 

	a.  The applicant was enrolled in the ADAPCP on 6 October 1982 following identification by military police of his wrongful possession and use of hashish.  He was enrolled in Track I rehabilitation and participated in 12 hours of awareness education, 3 sessions of individual counseling, and four urinalysis tests (one reported positive on 12 November 1982). 

	b.  His progress during the first 60 days had been satisfactory.  However, his conduct has been unsatisfactory due to his negative attitude and the positive urinalysis test indicated he was still using drugs.  His potential for successful rehabilitation was poor.  

13.  On 21 December 1982, the applicant underwent a mental status evaluation and was determined to be mentally competent.  He was psychiatrically cleared for administrative actions deemed appropriate by his chain of command. 

14.  On 26 January 1983, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for rehabilitative failure of the ADAPCP due to drug abuse.  The commander stated that it was determined further rehabilitative efforts were not practical and rendered the applicant a rehabilitative failure.  

15.  On 11 February 1983, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for rehabilitative failure of the ADAPCP for drug abuse, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He indicated he understood he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He submitted a statement with his acknowledgement letter.  He stated: 

* he knows he made mistakes but wanted the commander to reconsider the decision to separate him
* he was subjected to peer pressure and personal weakness in relation to using illegal drugs
* he admits that he did not abstain from the use of illegal drugs while in the ADAPCP; however, that program was geared toward alcohol abuse
* he felt pride of his comrades, and their mission but lost confidence in his unit; he really wanted to continue his service in the Army
* he knew other Soldiers who did worse things and ended up receiving an honorable discharge 

16.  Subsequent to the applicant's acknowledgement his immediate commander initiated separation action against him in accordance with chapter 9 of Army Regulation 635-200 by reason of rehabilitative failure of ADAPCP.

17.  On 28 February 1983, following a legal review for legal sufficiency, the separation authority approved the applicant's administrative separation and ordered the applicant discharged under the provisions of chapter 9 of Army Regulation 635-200, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 15 March 1983. 

18.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 9 of Army Regulation 635-200 by reason of "drug abuse – rehabilitation failure" with a general, under honorable conditions, characterization of service.  This form further shows he completed 3 years, 8 months, and 6 days of creditable active military service.

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

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 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 an entry-level status and an uncharacterized description of service is required.  

21.  Paragraph 3-7a of Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant exhibited a drug abuse problem and he was provided the opportunity to overcome his problem through counseling, rehabilitation, and referral to and enrollment in ADAPCP.  However, despite making good progress in this program, he continued to abuse drugs and he was therefore declared a drug rehabilitation failure.  Accordingly his immediate commander initiated separation action against him.  

2.  He was counseled and advised of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The evidence of record clearly shows he was referred to ADAPCP in an effort to help him with his drug problem.  However, the available evidence also shows that despite the multiple efforts to assist him with his problem, the applicant failed to display progress toward rehabilitation.  

3.  Based on his record of indiscipline and subsequent alcohol rehabilitation failure, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his service does not warrant 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)                                         AR20140017198





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ABCMR Record of Proceedings (cont)                                         AR20140017198



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