IN THE CASE OF:	

		BOARD DATE:	  28 September 2015

		DOCKET NUMBER:  AR20150000797


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:

	a.  a discharge upgrade;

   b.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

		(1)  Item 23 (Type of Separation), an unspecified, more favorable type of separation;

		(2)  Item 24 (Character of Service), his service characterized as honorable;

		(3)  Item 25 (Separation Authority), an unspecified, more favorable separation authority;

		(4)  Item 28 (Narrative Reason for Separation), an unspecified, more favorable narrative reason for separation; and

		(5)  Item 29 (Dates of Time Lost During This Period), an unspecified entry in place of the current entry "None."

	c.  reimbursement for lost service time after his contract was cut short; and

	d.  payment of his $10,000.00 dollar enlistment bonus.  
2.  The applicant states:

* he was discharged for several false urinalysis tests between 1981 and 1983
* he should be reimbursed for that portion of his remaining service he was not allowed to serve 
* he was denied his $10,000.00 dollar enlistment bonus, which he didn’t receive after he completed basic training and advanced individual training (AIT)
* he, like others, didn't complete his enlistment time and he wishes to be reimbursed for his remaining time, 
* he knows he was discharged unfairly, not because of what he'd done but because of a false urine test; he believes in his heart that justice requires the Army to reimburse him for the time he was not able to complete
* he hopes that the Board members will put themselves in his shoes; he's had a hard time with this, being denied benefits that he should have received

3.  The applicant provides no additional evidence in support of his application.  

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 11 August 1981 for a 3 year period.  His DD Form 1966 (Record of Military Processing – Armed Forces of the United States) shows in Section IV (Enlistment options accepted) that he enlisted for the U.S. Army Combat Arms Unit of Choice Enlistment Option with no indication of eligibility for an enlistment bonus.  He completed basic training and AIT and was awarded military occupational specialty 11B (Infantryman).  

3.  He was assigned to Company B, 2nd Battalion, 6th Infantry Regiment, Berlin Brigade, U.S. Army Europe, on or about 18 November 1981.  The highest rank/grade he attained during his military service was private first class/E-3. 

4.  His record contains a DA Form 2496 (Disposition Form), dated 18 August 1982, which shows he tested positive for tetrahydrocannabinol (THC) during a urinalysis test conducted on 5 August 1982.  As a result of his positive test result, his commander referred him for evaluation in accordance with USAREUR Supplement 1 to Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP)), with an appointment on 7 September 1982.

5.  He was recommended for enrollment in the Track I program that was approved by his company commander on 14 September 1982. 

6.  Three DA Forms 2496, dated 30 November 1982, 5 January 1983, and 10 December 1983, respectively, reveal that he failed three subsequent urinalysis drug tests all determined to have been positive for THC.    

7.  He underwent a mental status evaluation on 27 January 1983, wherein he was determined to be mentally responsible and to have the mental capacity to understand and participate in board proceedings.  He also met the retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

8.  An undated and unsigned memorandum pertaining to the applicant stated: 

     a.  He was referred to and enrolled in ADAPCP on 25 August 1982.

     b.  He was enrolled in the program for the use of marijuana/hash (THC).  SM (Service Member) has since tested positive three more times on urinalysis tests.

     c.  Rehabilitative efforts include:

          (1)  Date of detoxification:  25 August 1982, enrolled into Track I and on 26 December 1982, he was enrolled in Track II due to his continued use and desire not to cease the use of drugs.

          (2)  Dates of counseling by ADAPCP staff include the entire Track I program and part of the Track II.  The applicant’s continued use of drugs has forced the discontinuance of counselling by the BCC (Berlin Community Counseling) personnel.  

          (3)  The applicant has been continuously counselled by his chain of command but has failed to take corrective measures to correct his abusing of drugs. 

     d.  Summary of performance:  "[The applicant's] overall performance has been below standards.  He does not like authority and continuously combats against it.  His attitude and appearance have yet to show any improvement.  His behavior has been demoralizing to his platoon and he has only caused discontent.  [The applicant] does not warrant continued service in the U.S. Army." 

9.  His commander formally notified him on 28 February 1983 of his intent to initiation separation actions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9, based on his ADAPCP rehabilitation failure.

10.  He signed his notification letter on 1 March 1983, acknowledging that he understood the action that was being taken against him and elected not to consult with military legal counsel but did request treatment in a Department of Veterans Affairs (VA) Medical Center.  On the same date, he subsequently consulted with counsel and elected to submit statements in his own behalf; however, these statements are not available for review.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge.  

11.  The 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."

12.  The separation authority approved the recommendation to discharge the applicant on 16 March 1983, and directed he receive a General Discharge Certificate. 

13.  The applicant was discharged on 4 April 1983, under the provisions of Army Regulation 635-200, chapter 9, by reason of drug abuse – rehabilitative failure.  He completed 1 year, 7 months and 24 days of his 3-year enlistment contract.  The DD Form 214 he was issued shows in:

   a.  Item 23, the entry "Discharge";

   b.  Item 24, the entry "Under Honorable Conditions";

   c.  Item 25, the entry "Chapter 9 [Army Regulation] 635-200";

   d.  Item 28, the entry "Drug Abuse – Rehabilitative Failure"; and

   e.  Item 29, the entry "None."

15.  His record is void of evidence and he has failed to provide evidence that shows his positive urinalysis results were later invalidated for any reason, including faulty test procedures.  

16.  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.

17.  Army Regulation 600-85 (The Army Substance Abuse Program (ASAP)), previously titled ADAPCP, prescribed the policies and procedures needed to implement, operate, and evaluate the ADAPCP.

     a.  Paragraph 3-4 provided that command identification occurred when a commander observed, suspected, or otherwise became aware of an individual whose job performance, social conduct, interpersonal relations, physical fitness, or health appeared to be adversely affected because of abuse of alcohol or other drugs (apparent or suspected).  When abusers or suspected abusers were identified, they were to be interviewed by their unit commander or designated representative.  If appropriate, they were to be referred to the ADAPCP for an initial screening interview.

     b.  Paragraph 3-5 provided that when a service member had a positive urinalysis as a result of drug screen testing, mandatory referral for ADAPCP screening and medical evaluation was required to determine whether the positive urinalysis was the result of administrative error, medically prescribed use of the substance, or actual drug abuse.

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

     a.  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.

     b.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests and contentions were carefully considered.  

2.  The evidence of record shows he was enrolled in the ADAPCP after a positive urinalysis test.  He failed three urinalysis tests between October and December 1982.  Consequently, he was determined to be a rehabilitation failure and was discharged on 4 April 1983 under the provisions of Army Regulation 635-200, chapter 9. 

3.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.  
 
4.  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.

5.  His DD Form 214 accurately reflects the type of separation, character of service, separation authority, and narrative reason for separation applicable to his discharge.  He had no lost time.  

6.  There are no provisions of law for paying a former service member for time he/she would have completed had they not been discharged prior to their expiration of their term of service.

7.  Neither his enlistment contract nor any associated document shows he contracted for a $10,000.00 bonus and he provided no evidence that confirms he contracted for a bonus.



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)                                         AR20150000797



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