RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080001781 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 general discharge be upgraded to honorable.

2.  The applicant states that at the time of his discharge it was accurate that he had a drug and alcohol problem.  However, since his discharge he has completed a 12-step program and he is active in Alcoholics Anonymous.  He contends that he has 15 plus years of continuous sobriety and that his general discharge is hurting his career.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

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 on 12 October 1982 for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty 16D (Hawk missile crewman).

3.  On 9 May 1983, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay (suspended) and extra duty.

4.  On 14 December 1983, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-2 (suspended) and extra duty (suspended).

5.  The applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 24 January 1984 for substance abuse.  

6.  On 3 February 1984, nonjudicial punishment was imposed against the applicant for being drunk on duty.  His punishment consisted of a reduction to 
E-2 (suspended), a forfeiture of pay (suspended), and extra duty (suspended).  On 26 March 1984, the suspended portions of the sentence were vacated.

7.  On 29 March 1984, a bar to reenlistment was imposed against the applicant.

8.  On 10 April 1984, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.

9.  On 17 April 1984, the applicant was declared a rehabilitative failure by the ADAPCP staff.  It was reported that he participated marginally in the program, that he had another substance abuse incident in March 1984, and that his refusal to perform therapeutic tasks, his negative behavior, and continued substance usage contributed to his marginal participation.  It was also reported that the applicant was not drug dependent.

10.  On 7 May 1984, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  The unit commander cited the applicant’s marginal participation in the ADAPCP, his continued substance abuse, and his lack of concern for his career in the military.    

11.  The applicant consulted with counsel, waived his rights, acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued, and elected not to submit a statement on his own behalf.    

12.  On 8 May 1984, the separation authority approved the recommendation for discharge and directed that the applicant be furnished a general discharge.     

13.  Accordingly, the applicant was discharged with a general discharge on 
15 May 1984 under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  He had served 1 year, 7 months, and 5 days of creditable active service.

14.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

15.  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 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.  At the time of the applicant's separation an honorable or general discharge was authorized. 

16.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.    
 
DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining employment opportunities.  

2.  The applicant's record of service included a bar to reenlistment, four nonjudicial punishments, and failure to complete ADAPCP.  As a result, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's current clean and sober life is commendable but not sufficient to warrant an honorable discharge.

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.  The applicant acknowledged that he might encounter substantial prejudice in civilian life if a general under honorable conditions discharge were issued.  
   
4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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


ABCMR Record of Proceedings (cont)                                         AR20080001781


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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