BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150002873 


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 he has been out of the military for 27 years and has stayed out of trouble. 

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 enlisted in the Regular Army on 12 February 1986 and held military occupational specialty 82C (Field Artillery Surveyor).  

3.  On 30 January 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  He was enrolled in the Hanau Military Community Army Drug and Alcohol Prevention and Control Program (ADAPCP) in July 1987. 

4.  On 18 February 1988, he again accepted NJP for wrongfully using marijuana. He was reenrolled in the Hanau Military Community ADAPCP.  

5.  On 23 February 1988, the applicant was evaluated by a medical doctor who determined he met the retention standards of Army Regulation 40-501 (Medical Fitness Standards).  He concluded the applicant had the mental capacity to understand separation proceedings and had no mental illness. 

6.  On 19 March 1988, in response to the applicant's battalion commander, the Clinical Director, Hanau Military Community provided a synopsis of the applicant's ADAPCP rehabilitative activities.  He stated the applicant was enrolled on 18 March 1988 as a command referral for a positive urinalysis with a prior Track II enrollment in July 1987 for drugs in which he had a positive urinalysis for marijuana.  He participated in zero group sessions.  At the time of his return he was seen by the command as a rehabilitation failure due to his two positive urinalyses.  His potential for successful rehabilitation was poor. 

7.  On 21 March 1988, 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 ADAPCP failure.  The immediate commander cited the specific reason as the applicant's continued drug abuse and rehabilitation failure.  The commander stated that the applicant showed a lack of self-discipline and no interest in correcting his behavior.  There had been a noticeable decrease in his duty performance due to his continued abuse of drugs.  He recommended a general discharge.  

8.  On 21 March 1988, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for ADAPCP failure, 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 also understood that he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade.  He elected not to submit a statement on his behalf.

9.  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 ADAPCP rehabilitation failure.  The immediate commander recommended a general discharge.    

10.  On 24 March 1988, the separation authority approved the applicant's discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed the applicant be furnished a General Discharge Certificate.   

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 25 April 1988 under the provisions of chapter 9 of Army Regulation 635-200 by reason of "drug abuse rehabilitation failure" with a characterization of service of general, under honorable conditions. This form further shows he completed 2 years, 2 months, and 14 days of creditable active military service.

12.  There is no indication he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

13.  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.  Paragraph 3-7 of this regulation 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 was involved in a drug-related incident and he was enrolled in ADAPCP.  He was then involved in a second incident when he tested positive for marijuana.  

2.  He had exhibited a drug abuse problem and he was provided the opportunity to overcome his problem through counseling, rehabilitation, and referral to and enrollment in the ADAPCP.  However, he did not appear to have made any progress and therefore he was declared a drug rehabilitation failure.  Accordingly his immediate commander initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  The Army has never had a policy wherein a characterization of service is automatically upgraded due to the passage of time.  Based on his record of indiscipline and subsequent ADAPCP rehabilitation failure his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

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)                                         AR20150002873



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ABCMR Record of Proceedings (cont)                                         AR20150002873



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