DOCKET NUMBER:  AR20090000359 


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 he was discharged for drug abuse rehabilitation failure and wishes to have his discharge upgraded.  He adds that at no time did he ever test positive for drugs of any kind and that at no time was he ever placed in a drug or alcohol program.  He also adds that he was never offered any drug or alcohol rehabilitation program and that his records will show that he lost his MGIB benefits as a result of his discharge.  He further states that he hurt his hip during his military service as his record will reflect and was told he would receive an honorable discharge.  He further raises questions regarding alcohol treatment, punishment for any drug or alcohol related troubles, and challenges the Army to produce evidence that shows he was a substance abuser. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 21 February 1989, in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, an upgrade of the applicant's discharge. 

2.  Counsel states that the issues raised by the applicant advance his contention and substantially reflect the probable facts needed for an equitable review of his case.
3.  Counsel did not provide any additional documentary evidence in support of the applicant's request.

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 3 years on 26 February 1987.  He completed basic combat and advanced individual training and was initially awarded military occupational specialty 94B (Food Service Specialist).  He also executed a 5-month extension on 21 October 1987 and attained the rank/grade of private first class (PFC)/E-3.  

3.  The applicant's records also show he served in Germany from 22 July 1987 to 17 February 1989 and was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  

4.  On 11 August 1987, the company barracks charge of quarters (CQ) observed the applicant throwing a bottle out of the third floor window.  The CQ contacted the applicant's platoon sergeant who, upon arrival at the barracks, determined that the applicant had been drinking and directed him to sleep in the chair next to the CQ. 

5.  On 26 August 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being disrespectful in language towards a superior noncommissioned officer on or about 11 August 1987.  His punishment consisted of 14 days of extra duty and 14 days of restriction.



6.  On 16 September 1988, as of 15:35 hours, the applicant failed to report to work after the battalion food service sergeant had escorted him to his barracks room at 05:00 hours that morning to "sleep off" the alcohol he had consumed the night before. 

7.  On 26 September 1988, the clinical director of the U.S. Military Community, Mannheim, Germany, notified the applicant's immediate commander that the applicant was considered an Army alcohol and drug abuse prevention and control program (ADAPCP) failure.  He was initially referred to the ADAPCP subsequent to an alcohol-related incident and was enrolled in Track II on 28 June 1988.  His treatment plan included total abstinence from all mood-altering substances, attendance at AA once monthly, attendance at Track II group sessions once weekly, no alcohol-related incidents, and monthly urinalysis testing.  The director added that while enrolled, the applicant participated in 6 group sessions and was a no show for one group session.  Furthermore, he failed to attend AA as required and was not urinalysis tested while enrolled.  Additionally, he was involved in another alcohol-related incident on 
16 September 1988 and demonstrated little motivation for change.  He was aware of the consequences in not following his treatment plan and his prognosis for successful rehabilitation was poor.

8.  On 17 November 1988, 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 635-200 (Personnel Separations), for ADAPCP failure.  The immediate commander recommended a General Discharge Certificate.   

9.  On 17 November 1988, 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 further indicated that he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further elected to submit a statement on his own behalf; however, the statement is not available.

10.  On 17 January 1989, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of ADAPCP rehabilitation failure.  The immediate commander further remarked that the applicant failed to abstain from consuming large amounts of alcohol which led to a various number of blotter reports and that rehabilitation efforts before and after enrollment in the ADAPCP failed.  The immediate commander recommended an under honorable conditions (general) discharge.

11.  On 17 January 1989, the separation authority approved the applicant’s discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed the applicant be furnished a General Discharge Certificate.  

12.  On 26 January 1989, a Judge Advocate General officer reviewed the applicant’s discharge action under chapter 9 of Army Regulation 65-200 and found it legally sufficient.

13.  The applicant was accordingly discharged on 21 February 1989.  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 being a drug abuse rehabilitation failure.  This form further confirms he completed a total of 1 year, 11 months, and 26 days of creditable military service.

14.  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.

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 Soldiers because of alcohol or other drug abuse.  A member who has been referred to 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.  Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required.  However, an honorable discharge is required if restricted-use information was used.

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.  The applicant contends that his discharge should be upgraded because he never abused alcohol and/or drugs.

2.  The evidence of record shows that the applicant suffered from an alcohol abuse problem.  He was provided with multiple opportunities to overcome his problem including counseling and referral to and enrollment in the ADAPCP subsequent to an alcohol-related incident.  However, he showed poor rehabilitation potential, demonstrated little motivation for change, missed a group session, failed to attend an AA meeting, and was involved in yet another alcohol-related incident.  He was therefore 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. 

3.  Based on his record of ADAPCP failure, alcohol-related incidents, various blotter reports, and one instance of Article 15, 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.

4.  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.




      _______ _   ___x____   ___
               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)                                         AR20090000359



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ABCMR Record of Proceedings (cont)                                         AR20090000359



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