RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 December 2004
      DOCKET NUMBER:  AR2004105976


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Ronald J. Weaver              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded to honorable.

2.  The applicant states that he was discharged due to the erroneous
information that he was a Track II and Track I rehabilitation failure.  He
never attended Track II.  He admits he had too much to drink but there were
extenuating circumstances.  He went to Italy without his family, but when
he arrived he was told it would be six months before his family could go
over.  One night he did drink too much.  On the way back to the barracks,
someone attempted to start a fight with him but he ignored it.  Upon
arriving at the barracks, he was told his wife had called.  He could not
get an outside line from the barracks and the duty officer would not
authorize him to call the States.  He became upset, returned to his room,
and picked up a desk and turned it over.  He had some problem with the
military policeman who was trying to cuff him.  He was placed in a cell.
After all the paperwork was done he was released to his unit.  He was
allowed to return home for a month.  Upon his return, he was given an
Article 15.

3.  The applicant states that he was advised that he was going to see an
ADAPCP (Alcohol and Drug Abuse Prevention and Control Program) counselor.
He spoke to a Specialist Four for about 30 minutes and somehow she deemed
him a "rehab failure."  He admits that in Germany in 1983 he took the 8-
hour [ADAPCP] course, which he passed.  He was informed that it would not
follow him if he had no more problems with alcohol, which he did not.  He
had stopped drinking.  Since his discharge he has placed himself through an
alcohol program but the people there thought he did not need it.  There is
nothing in his medical records which shows he went through Track I or II.
He has no clue as to what Track II is since he never went through it.  He
should have been given that opportunity before the chapter 9 was completed.
 He admits the blood alcohol test came back was .088 percent but the
physician's assistant who did the blood alcohol test stated it was his
professional opinion that he was not intoxicated, just upset.

4.  The applicant provides two character references, dated 18 March 2004
and 16 March 2004.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel failed to review the records within the given time frame.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 August 1985.  The application submitted in this case is
dated 9 March 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 24 August 1981.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 95B (Military Police).  He was promoted to
Specialist Four on 1 October 1983.

4.  A DA Form 3975 (Military Police Report) indicates the applicant was
apprehended on 7 April 1985 after he became violent over the inability to
telephone the United States on the telephone on the desk of the charge of
quarters.  He threw the telephone on the floor and then entered his room,
where he turned over a desk, causing about $35.00 in damage.  When the
military police attempted to detain him, he became belligerent and profane.


5.  On 14 June 1985, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being drunk and disorderly
on or about   7 April 1985.  His punishment was a reduction to Private
First Class, E-3,          45 days extra duty, and a forfeiture of $396.00
pay per month for two months (suspended) until 18 August 1985.

6.  In a 2 July 1985 memorandum from the Clinical Director [of the Camp
Darby, Italy ADAPCP] to the applicant's commander, the Director informed
the commander that the applicant was enrolled into the program on 18 June
1985 resulting from a military police identification of alcohol abuse
(drunk and disorderly).  He was enrolled in Track I counseling.  To date,
he had only been seen on one occasion, the initial screening interview.
The applicant had informed the commander that he had been enrolled in an
ADAPCP program once before and apparently was released as a rehabilitation
success.  The Director noted that, at that time, the applicant did not show
motivation to change his drinking habits and his potential for another
successful rehabilitation was poor.
7.  On 8 July 1985, the applicant's commander informed him that he was
initiating action to discharge him under the provisions of Army Regulation
635-200, chapter 9.  The reasons cited for his proposed action were the
applicant's 1983 enrollment in the Track II program from 15 April to 8
August 1983 when he completed the program as a success, his involvement in
an alcohol-related incident on 7 April 1985, his reenrollment in Track I on
18 June 1985, and an ADAPCP rehabilitation synopsis which indicated he did
not show motivation to change his drinking habits and his potential for
successful rehabilitation was poor.

8.  On or about 8 July 1985, the applicant received the notification of the
separation action.  He declined the opportunity to consult with counsel and
he elected not to submit statements in his behalf.

9.  On 9 July 1985, the applicant's commander recommended he be discharged
from the Army under the provisions of Army Regulation 635-200, chapter 9,
for alcohol abuse rehabilitation failure.  He cited as reasons for the
proposed action the applicant's 1983 enrollment in the Track II program
from 15 April to 8 August 1983 when he completed the program as a success,
his involvement in an alcohol-related incident on 7 April 1985, his
reenrollment in Track I on 18 June 1985, and an ADAPCP rehabilitation
synopsis which revealed his potential for successful rehabilitation was
poor.

10.  On 22 August 1989, the appropriate authority approved the separation
recommendation and directed the applicant be given a general under
honorable conditions discharge.

11.  On 27 August 1985, the applicant was discharged with a general under
honorable conditions characterization of service, under the provisions of
Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure.  He
had completed 4 years and 4 days of creditable active service with no lost
time.

12.  On 23 January 1989, the Army Discharge Review Board (ADRB) denied the
applicant's request to upgrade his discharge.

13.  Army Regulation 600-85 prescribes policies and procedures needed to
implement and operate the ADAPCP.  At the time, the Army's rehabilitation
program was divided into three tracks.  Track I provided alcohol and other
drug awareness education and individual or group counseling or assessment
as required.  Participation in that track would normally not exceed 30
days.  The client would be transferred to one of the other tracks if more
intensive rehabilitation was required.  Track II provided individual,
group, or family counseling on a nonresidential or out-patient basis.
Enrollment in that track would be for a minimum of 30 days and would not
exceed 360 days.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 9 provides for the discharge of
members 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
soldier is enrolled in the ADAPCP and the commander, in consultation with
the rehabilitation team, determines that further rehabilitation efforts are
not practical, rendering the soldier a rehabilitative failure.

15.  Black's Law Dictionary, sixth edition defines "intoxicated" as
"affected by an intoxicant, under the influence of an intoxicating liquor."
 It defines "intoxification" as "Term comprehends situation where, by
reason of taking intoxicants, an individual does not have the normal use of
his physical or mental faculties, thus rendering him incapable of acting in
the manner in which an ordinarily prudent and cautious man, in full
possession of his faculties, using reasonable care, would act under like
conditions."

16.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant stated that he never attended Track II; however, based on
the dates he had previously been enrolled in ADAPCP (15 April to 8 August
1983, more than 30 days) it appears he had attended Track II.

2.  The applicant stated that, after he completed the 1983 ADAPCP he was
informed that it would not follow him if he had no more problems with
alcohol, "which he did not."  However, he did have more problems with
alcohol two years later.  Two years is not an excessive period of time in
which to expect an individual who was previously enrolled in ADAPCP to
abstain from problem drinking.  Even more control would be expected from an
individual who was a military policeman.
3.  The applicant admits the blood alcohol test came back as .088 percent.
An ordinarily prudent and cautious man (and a military policeman at that),
in full possession of his faculties, using reasonable care, would not have
thrown a phone on the floor or overturned a desk and then yell profanities
at the military police who came to arrest him.  Given those facts, the
applicant met the legal definition of intoxicated.

4.  Given that the applicant had such a serious alcohol incident a
relatively short time after a first enrollment in ADAPCP, it appears the
ADAPCP Clinical Director and the applicant's commander made a reasonable
determination that further alcohol rehabilitation would not be successful.
His administrative separation was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.  He was given an opportunity to submit a
statement on his own behalf and he failed to take that opportunity.

5.  The character reference letters provided by the applicant attest to his
good post-service work conduct; however, they have no bearing on the
misconduct that resulted in the characterization of service given to him
upon his separation from the Army.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 January 1989, the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 22 January 1992.  However,
the applicant did not file within the 3-year statute of limitations and has
not provided a compelling explanation or evidence to show that it would be
in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ym____  __ml____  __rjw___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Yolanda Maldonado___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004105976                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041216                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19850827                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 9                        |
|DISCHARGE REASON        |A45.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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