IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090001617 


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 (GD) under honorable conditions be upgraded to a fully honorable discharge (HD); that the narrative reason for separation be changed to a reason more favorable; and that his rank be restored to sergeant (SGT).  

2.  The applicant states, in effect, that he was promoted to SGT very early and graduated at the top of his classes; therefore, he believes his rank should be restored.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 and entered active duty on 4 October 1983.  He was trained in and awarded military occupational specialty (MOS) 94B (Food Service Specialist) and the highest rank he attained while serving on active duty was SGT.  The applicant’s record documents no acts of valor or significant achievement.  

3.  The applicant's record shows that on 30 May 1990, he was command referred to the Army Drug and Alcohol Prevention and Control Program (ADAPCP), Initially he was enrolled in the Track II outpatient program for driving while intoxicated (DWI) with a .21 blood alcohol content (BAC) on 13 April 1990.  At the time of enrollment the applicant was counseled on the treatment requirements for the Track II program with emphasis placed on total abstinence from alcohol and non-prescription drugs.

4.  On 19 June 1990, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the above DWI offense.  His punishment for this offense was a reduction to specialist (SPC) and a forfeiture of $560.00 per month for 2 months.

5.  On 15 November 1990, the applicant was suspected of being drunk on duty by his first sergeant and given a blood alcohol test.  On 28 March 1991, the results were received and his BAC was reported as .03.  

6.  On 24 April 1991, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for operating a passenger vehicle in a reckless manner while drunk on or about 6 April 1991.  His punishment for this offense was a reduction to the rank of private/E-1 (PV1), a forfeiture of $376.00 per month for 2 months, and 45 days of extra duty and restriction.

7.  On 25 June 1991, after consulting with the ADAPCP Clinical Director the applicant's unit commander declared the applicant an ADAPCP rehabilitation failure.  The unit commander notified the applicant that action was being 
initiated to separate him under the provisions of Chapter 9, Army Regulation
635-200 with a GD, based on him being declared an ADAPCP rehabilitation failure.  The unit commander cited the reason for the proposed action was that although the applicant was enrolled in Track II of the ADAPCP on 30 May 1990, due to DWI charges, he had continued to be involved in alcohol-related incidents. 

8.  On 25 June 1991, the applicant consulted with legal counsel and was advised of the basis of the contemplated separation action and of the effects of a GD.  Subsequent to this counseling the applicant completed an election of rights and elected not to submit statements in his own behalf. 

9.  The separation authority approved the applicant's separation action under provisions of Chapter 9, Army Regulation 635-200, by reason of alcohol rehabilitative failure and directed the applicant receive a GD.  On 30 July 1991, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at that time shows he completed a total of 8 years, 3 months, and
27 days of creditable active duty service and he held the rank of PV1 on the date of discharge.   

10.  On 15 November 1996, the Army Discharge Review Board reviewed the applicant's application for an upgrade of his discharge and his request for a change of the narrative reason for separation.  The ADRB determined the authority and reason for the applicant's discharge were both proper and equitable, and voted not to upgrade his discharge and/or to change the reason for discharge. 

11.  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 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.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item DD Form 214 preparation instructions.  The instructions for items 5a and 5b state, in effect, to enter the rank and pay grade held by the member on the date of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his GD should be upgraded to an HD, that he should receive a more favorable narrative reason for discharge, and that his rank should be restored to SGT were carefully considered.  However, there is insufficient evidence to support these claims.  

2.  The available evidence confirms the applicant was referred to the ADAPCP and enrolled in the Track II program, based on his abuse of alcohol/DWI.  While enrolled in the ADAPCP, he violated the policies by continuing to abuse alcohol; therefore, he was declared an ADAPCP rehabilitation failure and discharged in accordance with the application regulation. 
3.  Further, the decision to separate the applicant was taken after the applicant continued to abuse alcohol while he was enrolled in the ADAPCP.  He was evaluated by the unit commander and ADAPCP officials and it was determined that rehabilitative attempts were not justified.  

4.  The evidence of record also verifies that the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  The applicant’s continuous abuse of alcohol clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, absent any evidence of error or injustice related to his separation processing, there is an insufficient evidentiary basis to support an upgrade of his discharge  or to change the narrative reason for discharge.  

6.  The record further shows the applicant was reduced to SPC in June 1990, and that he was subsequently reduced to PV1 on 26 April 1991, as a result of valid NJP actions based on alcohol abuse-related offenses.  Therefore, there is also an insufficient evidentiary or merit basis to support restoration of his rank to SGT.  

7.  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.

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)                                         AR20090001617



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ABCMR Record of Proceedings (cont)                                         AR20090001617



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