IN THE CASE OF:	  

		BOARD DATE:	        03 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010507 


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 that his general discharge be upgraded to an honorable discharge. 

2.  The applicant states that it is his belief that he has lived an honorable life and he believes that he sacrificed a promising career to tend to his children.  He continues by stating that he was on his second tour in Germany and was spending most of his time on site, with limited time in garrison.  He goes on to state that he would come home to his wife and two children and find them in very unsanitary and dirty condition and under fed and sometimes sick.  He also states that his wife was not capable of caring for them and he requested a hardship discharge and was denied.  He continues by stating that after undergoing the meager family counseling that was available, he was told that the only discharge he could get was a chapter discharge, so he requested it and got it.  Since his discharge, he has raised his kids alone and they are healthy adults in their own rights.  Accordingly, he desires his discharge to be upgraded. 

3.  The applicant provides a hand-written letter explaining his application and 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.  The applicant enlisted in the Regular Army in Coral Gables, Florida on 2 March 1977 for a period of 4 years and training as a NIKE HERCULES fire control Mechanic.  He completed his one-station unit training (OSUT) at Fort Bliss, Texas and was transferred to Germany on 24 May 1978.  He was advanced to the pay grade of E-4 on 16 October 1978.  

3.  He departed Germany on 22 May 1980 and was returned to Fort Bliss for assignment to the Air Defense Board.  He was promoted to the pay grade of E-5 on 8 August 1980. 

4.  On 17 October 1980, he reenlisted for a period of 3 years and assignment to Europe.  He departed for Germany on 1 June 1981.  He elected to serve a “with dependents” tour and was granted deferred travel of his dependents.  He was assigned to an air defense artillery battery for duty as a fire control mechanic.

5.  In January 1982, the applicant was counseled by his supervisor regarding his repeated failure to report for work on time, for his failure to be at his place of duty, and his conduct at work.  His supervisor opined that the applicant was consuming an excessive amount of alcohol and suggested that if he did not self-refer himself to the Alcohol Drug Abuse Prevention Control Program (ADAPCP), the command would do so.  

6.  On 7 January 1982, the applicant self-enrolled himself in the Alcohol Drug Abuse Prevention Control Program (ADAPCP).  He was initially enrolled in Track II and on 10 May 1982, he was enrolled in Track III.    

7.  On 30 October 1982, he was involved in a traffic accident in which he was charged with drunk driving and failure to main control of his vehicle.

8.  On 10 November 1982, the ADAPCP Clinical Director opined that the applicant had been cited for failure to repair on two or three occasions and had been involved in an automobile accident, which was an indicator that the applicant was abusing alcohol.  He further opined that the applicant’s potential for rehabilitation was poor.

9.  On 22 November 1982, nonjudicial punishment was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay. 

10.  On 23 November 1982, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure.  He cited as the basis for his recommendation the applicant’s poor behavior on and off duty, his lack of motivation, his failure to respond to numerous counseling sessions from his chain of command, his failure to show interest in becoming rehabilitated, as evidence by his missing four scheduled appointments and two medical evaluations and his involvement in an alcohol related car accident.

11.  The applicant declined the opportunity to consult with counsel, declined treatment in a Veterans Affairs (VA) facility and elected not to submit a statement in his own behalf.

12.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

13.  Accordingly, he was transferred to Fort Jackson, South Carolina, where he was discharged under honorable conditions on 21 December 1982, under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse rehabilitation failure.  He had served 5 years, 9 months and 20 days of total active service.

14.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 of that regulation contains the authority and outlines the procedures for discharging individuals because of alcohol and/or drug abuse.  A member may be separated because of inability or refusal to participate in, or successfully complete a rehabilitation program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Characterization of service will be determined solely by the soldier’s military record that includes the soldier’s behavior and performance during the current enlistment.  An honorable discharge is a separation with honor and is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty.  A general discharge is a separation from the Army under honorable conditions.  It is issued to soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.        
DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no evidence of any violations of the applicant’s rights.  Accordingly, he was given the proper narrative reason for his separation and he has provided no evidence to justify an upgrade of his discharge.
 
3.  The applicant’s contentions have been noted; however, that in itself does not serve to overcome the basis for his discharge.  Additionally, the lack of mitigating circumstances on the part of the applicant at the time and his overall record of service simply does not constitute fully honorable service.  

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)                                         AR20080010507





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ABCMR Record of Proceedings (cont)                                         AR20080010507



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