RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080003377 


	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 discharge under honorable conditions be upgraded to honorable.   He further requests that the reason for his discharge be removed from his Certificate of Release or Discharge from Active Duty 
(DD Form 214).

2.  The applicant states, in effect, that during his 18 months of active duty he was never charged or convicted of a crime, alcohol related or otherwise.  He contends that, at the time of his separation, he did not receive competent legal counsel and that his chain of command failed him.  The applicant further states that he voluntarily accepted a general discharge based on his commander, first sergeant, and legal counsel telling him that he would be able to complete his college education and return to the military after a brief period of 1 year.  In 2006, the applicant felt compelled to reenter the Armed Forces.  He feels that his education and experience would greatly benefit the needs of today’s Army.  He was informed by the recruiter that his previous discharge for alcohol rehabilitation failure disqualified him for reenlistment.  The applicant further states that he has been a productive member of society.  He is married and has three children.  He has an extensive education in water treatment, computer information systems, and electronics.  He has served his community through his church and Masonic lodge.  He is currently employed by county government and has no issues with alcohol abuse.  He asks for another chance to wear the uniform of a Soldier again.  

3.  The applicant provides a copy of his DD Form 214. 

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.  On 16 November 1988, the applicant enlisted in the Regular Army for 4 years. He successfully completed his initial training and was awarded military occupational specialty 75F (Personnel Information Systems Specialist).  

3.  On 12 July 1989, the applicant’s commander referred him to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for evaluation.  The applicant received an initial counseling on 24 July 1989 and a medical examination on 28 July 1989.  Based on the results of the counseling and medical examinations the rehabilitation team determined that the applicant had problems significant enough to warrant his enrollment into Track III of the ADAPCP. 

4.  On 27 October 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for violating the company visitation policy.  The punishment included 7 days restriction and extra duty.

5.  On 8 November 1989, the applicant accepted NJP for failure to obey a lawful order, and for breaking restriction.  The punishment included reduction to pay grade E-1 (suspended), a forfeiture of $184.00 pay per month for 1 month, and 14 days of restriction and extra duty.  The suspended reduction was vacated on 
18 January 1990.

6.  On 1 February 1990, the applicant accepted NJP for striking another Soldier with a plunger.  The punishment included a verbal reprimand.

7.  On 23 April 1990, the applicant’s commander was notified by the ADAPCP counselor that the applicant had failed to comply with the Track III treatment plans and failed to meet goals, by being apprehended by the military police for being in violation of an off-limits order while under the influence of alcohol.  The rehabilitation team recommended that the applicant be declared a program failure and that he be administratively discharged.

8.  On 4 May 1990, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, Chapter 9, for ADAPCP rehabilitation failure.  

9.  On 4 May 1990, the applicant consulted with counsel, and elected to make a statement in his own behalf.  His statement is not available in the records for review. 

10.  On 11 May 1990 at a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  

11.  On 16 May 1990, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.  He further directed that the applicant not be transferred to the Individual Ready Reserve.

12.  Accordingly, he was discharged under honorable conditions on 23 May 1990.  He had completed 1 year, 6 months and 8 days of creditable active service.  The narrative reason for his discharge was shown as alcohol abuse – rehabilitation failure.  

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

14.  Army Regulation 635-200 (Personnel Separations) 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 Army Drug and Alcohol 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.  At the time of the applicant’s separation an honorable or general discharge was authorized.  However, an honorable discharge was required if restricted use information was used.

DISCUSSION AND CONCLUSIONS:

1.  Records clearly show that the applicant was a rehabilitation failure and was discharged accordingly.

2.  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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant’s claimed good post-service conduct is completely unsubstantiated.  It does not mitigate his repeated indiscipline during his military service.

5.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X____  ___X ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.






      __________X____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080003377



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508