RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060014088 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Thomas M. Ray

Member

Ms. Rea M. Nuppenau

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 general discharge, under honorable conditions, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he served proudly for 3 years and made mistakes in the past which he is attempting to correct.  He adds that he wants to be known as an honorably discharged Cold War Veteran.

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 2 July 1982, the date of his discharge.  The application submitted in this case is dated 12 September 2006 but was received on 4 October 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 on 17 July 1979.  The applicant successfully completed basic combat training and advanced individual training at Fort Dix, New Jersey.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 63B, Light Wheel Vehicle/ Power Generation Mechanic.  

4.  On 16 May 1980, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for recklessly damaging private property, owned by the Host Nation Government.  His punishment consisted of a reduction to the pay grade of E-1 (suspended) and 30 days CCF (Correctional Custodial Facility).

5.  The applicant was advanced to pay grade E-4 on 3 September 1981.




6.  On 4 January 1982, the applicant was evaluated for enrollment in the ADAPCP (Alcohol and Drug Prevention and Control Program), in effect, for his personal abuse of alcohol.  On 21 January 1982, he was enrolled.

7.  On 26 March 1982, he was punished under Article 15, UCMJ, for operating a vehicle while drunk and for possession of marijuana.  His punishment consisted of a reduction to pay grade E-3, a forfeiture of pay, and 30 days correctional custody. 

8.  On 8 June 1982, he was punished under Article 15, UCMJ, for failure to obey a written order, issued by the Commander, Headquarters III Corps, not to operate his privately own vehicle on Fort Hood, Texas.  His punishment consisted of a reduction to pay grade E-2, a forfeiture of pay, and 14 days restriction and extra duty.

9.  On 14 June 1982, the applicant was declared as a rehabilitation failure.  

10.  On 16 June 1982, the applicant's commander notified him of his intention to recommend him for discharge from the service under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse rehabilitation failure.  He cited as the basis for his recommendation, the applicant’s personal abuse of alcohol.  
He was informed that he would be awarded an honorable or general discharge certificate and that he had the right to consult with counsel.  

11.  The applicant acknowledged receipt and elected not to submit matters in his own behalf.  He also understood that if his recommendation was approved, he could receive either an honorable or general discharge.

12.  On 16 June 1982, the separation authority approved the recommendation for discharge and directed that the applicant be furnished a general discharge.  The applicant was discharged on 2 July 1982.  He had a total of 2 years, 11 months, and 16 days of creditable service.

13.  The applicant applied to the Army Discharge Review Board (ADRB) on 12 September 2006 for an upgrade of his discharge.  However, the ADRB      was precluded from accepting his application due to its statue of limitations (15 years).  This Board accepted his application (DD Form 149 [Application for Correction of Military Records]), dated 12 September 2006.




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 the Army's Alcohol and Drug Abuse Prevention and Control Program (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.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse rehabilitation failure. 

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The applicant's contentions are noted; however, they do not support an upgrade of his general discharge to honorable.

5. In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.




6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 July 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 July 1985.  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

__tmr____  __rn____  __J_____  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.




____  John T. Meixell_____
          CHAIRPERSON




INDEX

CASE ID
AR20060014088
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070417
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19820702
DISCHARGE AUTHORITY
AR 635-200, chap 9
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.