IN THE CASE OF: BOARD DATE: 18 December 2008 DOCKET NUMBER: AR20080016705 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, that his discharge, under honorable conditions, be upgraded to honorable. 2. The applicant states, in effect, that his discharge was not an error; however, he would like to have the change because he believes his troubles from his past have clouded his bright future long enough. The applicant adds that there is no reason for his continually being punished by having to show his discharge document to his employers. 3. The applicant submitted no additional documentation in support of his request. 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 U.S. Army Reserve on 28 September 1989. On 31 January 1990, he enlisted in the Regular Army. He completed basic combat and advanced individual training and was awarded the military occupational specialty 13B, Cannon Crewmember. 3. On 20 August 1990, the applicant received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for having a blood alcohol level of .06 while he was under the legal drinking age. The imposed punishment was 14 days extra duty. The applicant did not appeal the punishment. 4. The applicant was promoted to the rank/pay grade of private first class/E-3 on 1 November 1990. This would be the highest rank/pay grade the applicant would hold while he served in the Army. 5. On 14 February 1991, the applicant received non-judicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using marijuana between the period of 5 November 1990 and 6 December 1990. The imposed punishment was performance of 2 hours extra duty for 14 days. The applicant did not appeal the punishment. 6. On 21 March 1991, the applicant acknowledged receipt of a letter of reprimand from the Commander, 7th Infantry Division (Light) Artillery, for having submitted a urine sample to military authorities which was determined by biochemical testing to contain tetrahydrocannabinol, the active ingredient found in marijuana. The applicant's immediate unit commander, Battery B, 6th Battalion, 8th Field Artillery, recommended that the letter of reprimand be filed in his personnel record for 3 years or until a permanent change of duty station occurred. 7. On 29 April 1991, the applicant was counseled for uttering a dishonored check to the Army and Air Force Exchange Service on 9 March 1991. 8. On 11 June 1991, the clinical director, Community Counseling Center, notified the applicant's unit commander he had been enrolled in a drug rehabilitation program on 21 March 1991 and was declared to be a rehabilitation failure on 30 May 1991. In his letter of notification, the clinical director wrote, "Unfortunately, [the applicant's] inability or refusal to respond to his rehabilitation plan substantially reduces his potential for fully effective service and necessitates a chapter 9 recommendation." 9. On 11 July 1991, the applicant received non-judicial punishment under the provisions of Article 15 of the UCMJ for willfully disobeying orders from a noncommissioned officer on 15 June 1991. The imposed punishment was a forfeiture of $100.00 and restriction and extra duty for 14 days. The applicant did not appeal the punishment. 10. The applicant underwent a separation physical examination on 25 June 1991. He was found medically qualified for separation. 11. On 2 August 1991, the applicant's unit commander notified him he was taking action to discharge him from the Army under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9, for alcohol and drug rehabilitation failure. The applicant was advised that he had the right to consult with consulting counsel, present his case before a board of officers if he had 6 or more years active and Reserve service, to submit statements in his behalf, to be represented at any hearing by appointed counsel for representation, and to waive any or all of his rights. The applicant was further advised that the least favorable discharge he could receive under these provisions was a general discharge. The applicant acknowledged the unit commander's notification on 2 August 1991. 12. On 5 August 1991, the applicant waived consideration of his case and a personal appearance before a board of officers. He waived representation by counsel; however, the evidence shows he was advised by an Army captain of the basis for his contemplated separation and its effect and the rights available to him and the effects of the waiver of his rights. 13. On 5 August 1991, the applicant's unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 9, for alcohol and drug rehabilitation failure. The unit commander recommended that the applicant be discharged and issued a general discharge. 14. The applicant's discharge was approved by the appropriate authority on 9 August 1991. The approval authority directed that the applicant receive a general discharge certificate. 15. The applicant was discharged in the rank and pay grade of private, E-1, on 20 August 1991, under the provisions of Army Regulation 635-200, chapter 9, paragraph 9-2a, for drug abuse rehabilitation failure. On the date of his discharge the applicant had completed 1 year, 6 months, and 20 days of net active service with no days of time lost. 16. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was awarded the Army Service Ribbon, the National Defense Service Medal, and the Marksman Marksmanship Qualification Badge with Rifle Component Bar. The record contains no documentary evidence of acts of valor or achievement which warrant special recognition. 17. There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 18. 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 individuals because of alcohol or other drug abuse. A member who has been referred to or enrolled in an alcohol or drug abuse rehabilitation counseling program may be separated because of his or her 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. 19. 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 AND CONCLUSIONS: 1. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 2. In his application, the applicant admitted his separation from the Army was not an error. He admits that he just wants an upgrade of his discharge because he believes his troubles from his past have clouded his bright future long enough. He adds that there is no reason for his continuing to be punished by having to show his discharge document to his employers. 3. From review of documentary evidence, the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. 4. The evidence shows the applicant was enrolled in a drug and alcohol rehabilitation program on 21 March 1991 and was declared to be a rehabilitation failure on 30 May 1991. His inability or refusal to respond to his rehabilitation plan substantially reduced his potential for fully effective service and necessitated a recommendation for his discharge He was discharged accordingly. 5. The overall quality of the applicant's service was considered. The record contains no documentary evidence of acts of valor or achievement which would warrant special recognition and an upgrade of his general discharge. His service was determined not to be sufficiently meritorious to warrant an upgrade of his discharge to a fully honorable discharge. 6. In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to either a general or 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) AR20080016705 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080016705 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1