RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 September 2006
      DOCKET NUMBER:  AR20060002101


      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             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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, in effect, that his discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, an upgrade of his discharge upgrade so
that he can gain access to Veteran Affairs (VA) benefits.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 May 1987.  The application submitted in this case is
dated
31 January 2006.

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 limitations 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’s record shows he enlisted in the Regular Army and
entered active duty on 13 March 1986 for a period of 3 years.  He was
trained in, awarded and served in military occupational specialty (MOS)
91A10 (Medical Specialist), and the highest rank he attained while serving
on active duty was pay grade E-3.   The applicant’s record documents no
acts of valor, significant achievement, or service warranting special
recognition.

4.  On 8 August 1986, the applicant accepted nonjudicial punishment (NJP)
for being absent without leave from 28 to 29 July 1986.  His imposed
punishment was 14 days restriction and extra duty.

5.  In August 1986, the applicant enrolled in the Army Drug and Alcohol
Prevention Control Program (ADAPCP) as a command-referral.  The applicant
continued to drink so he was declared a rehabilitation failure on 3
September 1986.

6.  On 12 September 1986, the applicant accepted NJP for drunk and
disorderly conduct.  His imposed punishment was a reduction to pay grade E-
2, 14 days restriction and extra duty.

7.  On 19 December 1986, the applicant was command referred to the ADAPCP.
On 6 April 1987, the ADAPCP Clinical Director completed a progress status
form which indicated the applicant displayed an unwillingness to follow
through with established goals of remaining alcohol free.  His potential
for successful rehabilitation was guarded and it was determined that he was
alcohol rehabilitation failure.

8.  Between 1986 and 1987, the applicant was formally counseled on
11 different occasions for misconduct, unsatisfactory performance of duty,
for his alcohol abuse problems and for ADAPCP failures.

9.  On 9 April 1987, a physical examination cleared the applicant for
separation.

10.  On 10 April 1987, a Mental Status Evaluation found the applicant to be
mentally competent, able to distinguish right from wrong and to adhere to
the right.  The applicant was also found to be mentally capable of
understanding and participating in board proceedings.

11.  On 16 April 1987, the applicant’s unit commander notified him that
separation action under the provisions of chapter 9, Army Regulation 635-
200, was being initiated on him because of his alcohol rehabilitation
failure.  On the same day the applicant acknowledged notification.

12.  On 17 April 1987, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, its effects,
and of the rights available to him.  Subsequent to his counseling, the
applicant elected not to submit a statement in his own behalf.  However, he
requested treatment in a VA medical center.

13.  On 22 April 1987, the appropriate authority approved the separation
action on the applicant and directed that he receive a discharge under
honorable conditions and that the narrative reason for separation be
“Alcohol Abuse-Rehabilitation Failure”.  On 6 May 1987, the applicant was
discharged accordingly.  The DD Form 214, he was issued shows he completed
a total of
1 year, 1 month and 24 days of creditable active military service.

14.  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 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.

15.  On 5 June 1991, the Army Discharge Review Board denied the applicant's
petition to upgrade his discharge.

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 Army Discharge Review Board (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 Army Board for Correction of Military Records
(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’s contention that his discharge should be upgraded so
that he can gain access to VA benefits was carefully considered and found
to be insufficient in merit.  The evidence of record confirms the
applicant’s separation processing was accomplished in accordance with the
applicable regulation.  All requirements of law and regulation were met and
the rights of the applicant were fully protected throughout the separation
process.

2.  The applicant’s conduct was inconsistent with the Army’s standards for
acceptable personal conduct and his overall quality of service was not so
meritorious as to warrant a fully honorable discharge.  Therefore, there is
no evidence nor has the applicant presented any evidence to warranted
relief at this time.

3.  Therefore, in order to justify correction of a military record the
applicant must show to the satisfaction of the Board, 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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 5 June 1991.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 4 June 1994.  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

__LDS___  __PMS__  __AM___  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.




                                  ___Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/09/26                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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