IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20090003341 


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 under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD) and for restoration of his grade to specialist four (SP4).

2.  The applicant states, in effect, it has been a long time since his discharge and he has not had a drink in 15 years.  He claims he is an active member of his church and is asking for upgrade consideration.

3.  The applicant provides no 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 record shows he enlisted in the Regular Army on 1 September 1983 and was trained in and awarded military occupational specialty 51R (Interior Electrician).

3.  The applicant’s record shows he was promoted to the rank of SP4 on 1 September 1984 and that this is the highest rank he attained while serving on active duty.  

4.  The applicant’s record further shows that during his active duty tenure he earned the Army Good Conduct Medal (2nd Award), Army Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 31 May 1990 for missing movement with his unit for a deployment to Japan.  His punishment for this offense was a reduction to private first class (PFC), forfeiture of $100.00, and 14 days of extra duty.

6.  On 16 June 1990, the Clinical Director of the Community Counseling Center, Fort Eustis, Virginia, prepared a memorandum containing an assessment of the applicant.  He indicated that on 22 May 1989 the applicant was referred to the Fort Eustis counseling center for an alcohol assessment due to domestic problems involving alcohol; he was enrolled in the Track II program of the Alcohol and Drug Abuse Prevention Program (ADAPCP) and completed the program on 3 January 1990.  On 31 May 1990, the applicant was again referred for alcohol-related problems by his commander.  The clinical director commented that the applicant’s inability to make the necessary changes to his lifestyle had hampered his recovery process.  He indicated his belief that by the applicant's recidivistic behavior, the applicant was a rehabilitative failure and any further efforts toward rehabilitation were therefore contraindicated.  He further indicated the Fort Eustis counseling center staff considered the applicant a rehabilitative failure and, pursuant to the governing regulation, action to separate the applicant should be effected at the commander’s discretion.  He concluded by stating that the applicant was alcohol dependent.

7.  On 9 July 1990, the unit commander notified the applicant that he was initiating action to separate the applicant based on his being an alcohol abuse rehabilitative failure.  He indicated that his reason for taking the action was the applicant’s failure to successfully complete the ADAPCP and the fact he had been diagnosed as a rehabilitative failure.  He further indicated he was recommending the applicant receive a GD.

8.  On 9 July 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights.  The applicant elected to waive his right to consideration of his case by a board of officers, his right to a personal appearance before a board of officers, and elected not to submit statements in his own behalf.  He further acknowledged that he could expect to encounter substantial prejudice in civilian life based on receiving a GD and he indicated he did not request treatment at a Department of Veterans Affairs medical center.

9.  On 11 July 1990, the separation authority approved the separation action and directed he receive a GD.  On 16 July 1990, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 5 years, 10 months, and 16 days of creditable active military service.

10.  On 5 July 1992, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge and, on 26 May 1995, after carefully reviewing the applicant’s entire military record and the issues presented, determined the applicant’s discharge was proper and equitable.  The ADRB finally voted not to upgrade or change the reason for his discharge.

11.  Army Regulation 635-200 (Personnel Separations) 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 635-200, 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’s contention that his discharge should be upgraded to an HD because he has lived with the discharge for a long time and because he is now a productive citizen was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms the unit commander’s decision to separate the applicant was taken only after the Community Counseling Center Clinical Director determined the applicant's chance for successful rehabilitation was poor given his previous ADAPCP enrollment history.

3.  The applicant’s record confirms the highest rank he attained while serving on active duty was SP4 and that his reduction to PFC was the result of his acceptance of NJP for missing movement with his unit.  His record documents no acts of valor or significant achievement and his post service conduct alone is not a sufficient basis of merit to support the restoration of his rank.

4.  The evidence for record further confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulatory were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s abuse of alcohol and his unwillingness to rehabilitate clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, it is concluded that his discharge accurately reflects his overall record of service and it would not be appropriate to upgrade his discharge at this late date.

5.  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)                                         AR20090003341



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ABCMR Record of Proceedings (cont)                                         AR20090003341



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