BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160003243 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160003243 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160003243 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 characterization of service from under honorable conditions (general) to honorable. 2. The applicant states he would like to have his characterization of service upgraded to honorable as recommended by his commanding officer on AER Form 635(9)-126-R (Notice of Intention of Separation Proceedings and Acknowledgment), page 2, paragraph 5, as he was privy to the extenuating circumstances leading up to his decision to accept a discharge under Chapter 9. He believes the undated form is a direct discrepancy as shown in the recommendation on page 1, paragraph 1. In addition, page 1, paragraph 5, states there is no record of counseling that should have been provided given the magnitude of the situation. The applicant is unsure as to the cause of this discrepancy, but was expecting what was explained on the form as previously described. 3. The applicant provides no 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 23 September 1986. Upon completion of advanced individual training at Fort Leonard Wood, Missouri, he was assigned to the 109th Transportation Company, Federal Republic of Germany. 3. On 17 May 1988, while holding the rank/grade of private first class/E-3 and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana on or about 9 February to 15 March 1988. 4. On 29 June 1988, while holding the rank/grade of private/E-2 and in a closed hearing, he accepted NJP under the provisions of Article 15, UCMJ, for wrongfully using marijuana on or about 1 May to 6 June 1988. 5. Evidence shows the applicant was enrolled in Track II of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 5 May 1988, as the result of a positive urinalysis for tetrahydrocannabinol (THC). Since his enrollment, the applicant indicated he had little interest in rehabilitation as evidenced by: no commitment to alcohol abstinence, failure to attend Alcoholics Anonymous meetings, and his failure to attend two group meetings. 6. On 27 June 1988, the applicant's immediate commander stated since his assumption of command, the applicant had two positive urinalyses for THC and he consistently displayed a very apathetic attitude. The applicant failed to respond to the efforts of his chain of command and ADAPCP counselors to help him. His commander did not believe the applicant intended to try to change his current unsatisfactory behavior and he concurred with the ADAPCP recommendation that the applicant's potential for rehabilitation was practically non-existent. 7. On 8 July 1988, the applicant underwent a mental status evaluation in which he was found to have the mental capacity to understand and participate in separation proceedings under Chapter 9, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 8. On 12 July 1988, the applicant's commander notified him that he was initiating action to discharge him from the service for being an alcohol or other drug abuse rehabilitation failure under the provisions of chapter 9, Army Regulation 635-200. His commander recommended an honorable discharge; however, it is noted in paragraph 4 of AER Form 635(9)-126-R that the separation authority could direct his release from active duty to a reserve component as well as directing the least favorable characterization of service of under honorable conditions (general). The applicant acknowledged receipt of his immediate commander's intention to separate him from service under chapter 9, Army Regulation 635-200. The applicant also noted that he had not been previously counseled regarding the type of discharge he may receive and the possible effects on him. 9. On 19 July 1988, after consulting with counsel and being advised of his rights, he acknowledged receipt of the proposed action to separate him under the provisions of chapter 9, Army Regulation 635-200 for alcohol or other drug rehabilitation failure. He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He elected not to submit a statement in his own behalf. 10. His record contains an undated AER Form 635(9)-155-R (Commanding Officer's Recommendation) which shows the applicant's immediate commander subsequently recommended the applicant be separated from the U.S. Army under the provisions of Army Regulation 635-200, chapter 9 for alcohol or other drug rehabilitation failure. He further recommended that the applicant receive an under honorable conditions (general) discharge. The applicant provided his signature acknowledging he had been advised of the rights available to him in accordance with Army Regulation 635-200, chapter 2, paragraph 2-2. 11. On 21 July 1988, the separation authority approved the applicant's discharge and directed the issuance of a general discharge. 12. He was discharged from active duty on 17 August 1988 under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure with an under honorable conditions (general) characterization of service. He was credited with 1 year, 10 months, and 25 days of net active service. 13. There is no indication that he applied to the Army Discharge Review Board to request an upgrade of his characterization of service within that board?s 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200, chapter 9, provides the authority and outlines the procedures for discharging enlisted personnel for alcohol or other drug abuse rehabilitation failure. Discharge is based on alcohol or other drug abuse such as the illegal, wrongful, or improper use of any controlled substance; alcohol, or other drug when the member is enrolled in ADAPCP and/or the commander determines that further rehabilitation efforts are not practical, rendering the member a rehabilitation failure. This determination will be made in consultation with the rehabilitation team. A member who: is enrolled in 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 when there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical, or long-term rehabilitation is necessary and the member is transferred to a civilian medical facility for rehabilitation. The service of members discharged under this section will be characterized as honorable or under honorable conditions (general). 2. Army Regulation 635-200, 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: 1. The applicant requests an upgrade of his under honorable conditions (general) discharge to an honorable discharge. 2. Contrary to the applicant's contentions, evidence shows the applicant consulted with counsel, was advised of his rights, and he acknowledged receipt of the proposed action to separate him under the provisions of chapter 9, Army Regulation 635-200 for alcohol or other drug rehabilitation failure. He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under honorable conditions (general) discharge was issued to him. 3. Regardless of whether or not his immediate commander recommended an honorable or general discharge, the separation authority is not bound by the lower commander's recommendation as to the characterization of his service. The separation authority considers all of the facts, evidence, and recommendations presented and independently makes his or her decision. 4. The applicant's separation action was accomplished in compliance with applicable regulations and statutes, and there is no indication of procedural errors which may have jeopardized his rights. In addition, he consulted with legal counsel, and he was advised by his counsel of the nature of the separation action, the effects of an under honorable conditions (general) discharge, and his rights under the provisions of the regulation. The characterization of service he received was commensurate with the reason for his discharge. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003243 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003243 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2