IN THE CASE OF:	  

		BOARD DATE:	        16 October 2008

		DOCKET NUMBER:  AR20080011398 


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 an upgrade of his general, under honorable conditions discharge to an honorable discharge. 

2.  The applicant states that if his requests for help at the time were taken seriously, he would not have gotten in trouble as much as he did.  He states that his section chief ignored his request for outside help and thought he should straighten up on his own.  He also states that he was reclassified into a new specialty which made matters worse.  He adds that he was a good Soldier with few problems that could have been corrected with proper treatment.

3.  The applicant did not provide any additional documentary evidence in support of his 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 records show he enlisted in the Regular Army for a period of 4 years on 22 October 1980.  He completed basic combat and advanced individual training and was initially awarded military occupational specialty (MOS) 15J (Multiple Launch Rocket System/LANCE Operation/Fire Direction Specialist). The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show that he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant achievements or accomplishments during this period of military service.

4.  On 15 March 1982, the applicant's immediate commander initiated action to permanently disqualify him from the Personnel Reliability Program (PRP) citing his aberrant behavior which was prejudicial to the performance of his duties in a controlled position.  The immediate commander remarked that the applicant had minor alcohol related incidents and some family problems as a result of use of alcohol.  The immediate commander further remarked that on 11 March 1982, the applicant left work without authorization and returned to his home.  While home, he proceeded to take 25-30 sleeping pills and drank half a bottle of liquor. He was subsequently admitted to the hospital and refused to have his stomach pumped and stated that if he could, he would do it again.  

5.  On 19 March 1982, the applicant acknowledged receipt of the permanent disqualification from the PRP notification and elected not to make a statement refuting the disqualification and elected to be reclassified into MOS 76Y (Supply Specialist).

6.  On 23 March 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed, to his appointed place of duty, on or about 11 March 1982; and being disrespectful in language toward a superior noncommissioned officer, on or about 15 March 1982.  His punishment consisted of reduction to private first class (PFC)/E-3, forfeiture of $149.00 pay for one month, 14 days of restriction, and 14 days of extra duty. 

7.  On 25 March 1982, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his misconduct.  The 
immediate commander further remarked that the applicant clearly demonstrated by his repetitive misconduct that he was unable to satisfactorily adjust to military life.  He failed to curtail his misconduct despite the NJP imposed.  

8.  On 2 April 1982, the applicant's battalion commander approved the applicant's permanent disqualification from the PRP.

9.  On 16 July 1982, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully communicating a threat toward the unit charge of quarters (CQ), on or about 20 June 1982.  His punishment consisted of reduction to private (PV2)/E-2 and 14 days of extra duty.

10.  On 16 July 1982, the clinical director of the Community Counseling Center, Giessen, Germany, notified the applicant's immediate commander that subsequent to the applicant's enrollment in the Army alcohol and drug abuse prevention and control program (ADAPCP) on 25 March 1982, a social intake was done on 21 April 1982.  At that time it was found that the applicant had no desire to stop using drugs and alcohol and requested to get out of the Army any way possible.  Additionally, on 9 July 1982, it was reported that the applicant was involved in a traffic accident and was driving while intoxicated (DWI) at the time of the accident.  The clinical director further stated that it appeared that further counseling was being wasted and the applicant was considered an ADAPCP failure.  

11.  On 20 July 1982, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation (AR) 635-200 (Personnel Separations), for ADAPCP failure.  The immediate commander recommended a General Discharge Certificate.   

12.  On 20 July 1982, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for ADAPCP failure, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He elected not to consult with military council and declined making a statement on his own behalf.

13.  On 20 July 1982 (erroneously shown as 19 July 1982), the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200 because of rehabilitation failure.  The immediate commander further 
remarked that rehabilitation efforts before and after enrollment in the ADAPCP failed.  The applicant's dependency on drugs and alcohol remained unchanged since his rehabilitative transfer.  He reported to work routinely with a hangover from over-indulgence the previous evening.  While drunk, off duty, he became abusive and disrespectful to other Soldiers.  He did not accept counseling from his supervisors or commander.  He refused to rehabilitate himself or even make an effort to cure the consumption of his alcohol.  He was mentally immature, irresponsible, lacked motivation, and had difficulty following guidance.  His overall substandard performance and alcohol dependence did not support further retention in the Army.

14.  On 26 July 1982, the separation authority approved the applicant’s discharge, under the provisions of chapter 9 of AR 635-200 and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 6 August 1982.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of an under honorable conditions (general), by reason of alcohol or other drug abuse.  This form further confirms he completed a total of 1 year, 9 months, and 15 days of creditable military service.

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

16.  AR 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 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.

17.  AR 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.  The evidence of record shows that the applicant was provided with multiple opportunities to overcome his drug and alcohol problems, including reclassification, counseling, rehabilitative transfer, and enrollment in the ADAPCP.  However, he was declared an ADAPCP rehabilitation failure and accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not seem to be an error or an injustice in his discharge. 

2.  Based on his record of indiscipline which included two instances of Article 15, a bar to reenlistment, PRP disqualification, and ADAPCP failure, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant service does not warrant an honorable discharge.

3.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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.


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      ______________________
               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)                                         AR20080011398



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ABCMR Record of Proceedings (cont)                                         AR20080011398



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