IN THE CASE OF:	  

		BOARD DATE:	        05 AUGUST 2008

		DOCKET NUMBER:  AR20080006046 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general discharge be upgraded to an honorable discharge.

2.  The applicant essentially states that he was never assigned to rehabilitation for his alcohol abuse, and requests that his records be reviewed and that his characterization of service shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from under honorable conditions to honorable. 

3.  The applicant provides his DD Form 214 in support of this application. 

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's military records show that he enlisted in the Regular Army on 26 February 1981.  He completed basic and advanced individual training and was awarded military occupational specialty 61C (Watercraft Engineer).  However, prior to completing this training, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 July 1981 for committing an assault upon another Solder by striking him on the head with a broomstick; a means likely to produce grievous bodily harm.  His punishment consisted of forfeiture of $200.00, 14 days restriction, and 14 days of extra duty, all of which was suspended until 
15 October 1981 and apparently remitted without further action.  On 11 August 1981, the applicant departed for a tour in Panama for what would be his first and only permanent duty assignment.

3.  Between 13 January 1982 and 20 July 1982, the applicant was formally counseled on at least five occasions for various offenses such as failing to go to his appointed place of duty and being absent from his place of duty.

4.  On or about 16 August 1982, the applicant accepted NJP under Article 15 of the UCMJ for being drunk and disorderly in his command area.  His punishment consisted of 14 days of extra duty and forfeiture of $100.00 pay per month for 
1 month.

5.  On 25 October 1982, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 
22 September 1982, and remaining so absent until on or about 17 October 1982. His punishment consisted of reduction in rank and pay grade from private first class/E-3 to private/E-2, forfeiture of $140.00 pay per month for 1 month, 14 days of extra duty, and 7 days restriction.

6.  The applicant's military records contained a DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program [ADAPCP] Client Intake Record which essentially shows that he was enrolled in Track II of the ADAPCP on 8 December 1982 for alcohol abuse and improper use of cannabis.  Item 25 (Immediate Disposition) of this document essentially shows that inpatient detoxification was unnecessary for the applicant.  

7.  In a letter, dated 9 June 1983, the Alcohol and Drug Control Officer and the Program Manager of the applicant's ADAPCP jointly stated that the since the applicant's enrollment in the ADAPCP, he had provided seven urine samples, three of which returned positive for THC.  They also stated, in effect, that the applicant's supervisor reported that the applicant was continuing to drink heavily, as could be observed almost any evening in the barracks.  They also indicated that it was doubtful that the applicant would discontinue using illegal drugs in the near future, and recommended that he be released from the ADAPCP as "Not Progressing."  They also recommended that the applicant's commander consider initiating procedures for the separation of the applicant from the United States Army

8.  On 22 June 1983, a mental status evaluation was conducted on the applicant. The physician assistant who conducted this evaluation determined that the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and that he had no significant mental illness.  

9.  On 29 July 1983, 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 continued alcohol and drug abuse.  He stated, in pertinent part, that the applicant had demonstrated that he was unable or unwilling to remain free from the abuse of both alcohol and drugs, and that his continued pattern of performance had caused him to be considered a liability to the United States Army.  He was also advised of his rights, which included his right to request treatment in a Veterans Administration (VA) medical center.  

10.  On 4 August 1983, the applicant acknowledged receipt of the letter of notification of action under the provisions of Army Regulation 635-200, chapter 9, and acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for alcohol or other drug abuse rehabilitation failure and its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected not to submit statements in his own behalf or request treatment in a VA medical center. He also understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

11.  On or about 10 August 1983, the proper authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 9, and essentially directed that a General Discharge Certificate be issued to him.  The applicant returned to the continental United States on 23 August 1983, and on  
24 August 1983, the applicant was discharged accordingly.

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

13.  The applicant essentially stated that he was never assigned to rehabilitation for his alcohol abuse, and requested that his records be reviewed and that his characterization of service on his DD Form 214 be changed from under honorable conditions to honorable. 

14.  Chapter 4 (Rehabilitation) of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), in effect at the time provided, in pertinent part, that rehabilitation began when an individual was identified as being involved with alcohol and other drug abuse, or illegal use.  After the initial screening interview had been completed, the rehabilitation team would meet to make a determination of what rehabilitation approach would best meet the needs of the individual and achieve his or her earliest possible return to full effective duty.  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.  Track II provided individual, group, or family counseling on a nonresidential or out-patient basis.  In addition to a more intensified counseling effort, the education sessions of Track I were available.  Enrollment in Track II was for a minimum of 30 days.  Track III provided an intensive residential rehabilitation treatment program of 6 to 8 weeks duration with mandatory nonresidential follow-up period for a total treatment program of 
1 year.  The decision to enter a client into Track III was made by a physician in consultation with the other rehabilitation team members.  The ADAPCP was a manpower conservation program designed to assist commander in retaining Soldiers with potential for continued military service.  However, when a commander, in consultation with the ADAPCP staff, determined that further rehabilitative measures were not practical and that separation would be based upon alcohol or other drug abuse, Army Regulation 635-200 would be used for enlisted personnel.   

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.  

16.  Army Regulation 635-200, paragraph 3-7a, also provides, in pertinent part, 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.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge. 

2.  The applicant's contention that he was never assigned to rehabilitation for his alcohol abuse was considered, but not found to have any merit.  The applicant was enrolled in Track II of the ADAPCP on 8 December 1982, and it was determined by competent medical authority that he did not require inpatient detoxification.  He was ultimately declared a rehabilitation failure, and was properly discharged under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse rehabilitation failure.  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.  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.  

4.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005778



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ABCMR Record of Proceedings (cont)                                         AR20080006046



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