IN THE CASE OF:	  

		BOARD DATE:	        21 MAY 2009

		DOCKET NUMBER:  AR20090003490 


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 be upgraded to honorable with a more favorable narrative reason for separation. 

2.  The applicant states, in effect, that he was never offered or given any rehabilitation for alcohol, nor was he warned; therefore, his discharge amounts to defamation.  He goes on to state that his discharge should not be valid because he was not offered any help and if the Army did so, they should be required to show proof.  He also states that the discharge has caused him depression and mental anguish.

3.  The applicant provides a two-page handwritten letter explaining why he believes his discharge should be upgraded, a letter of recommendation from a minister, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of a Certificate of Completion from the Department of Veterans Affairs Intensive Outpatient Substance Abuse Program.

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 was born on 28 April 1960 and enlisted in the Regular Army in Houston, Texas on 18 January 1980 for a period of 4 years; training as a cannon crewman; assignment to Fort Lewis, Washington; and a cash enlistment bonus.

3.  He completed his one-station unit training (OSUT) at Fort Sill, Oklahoma and was transferred to Fort Lewis for his first duty assignment.  He was advanced to the pay grade of E-4 on 1 September 1981.

4.  On 11 March 1981, nonjudicial punishment (NJP) was imposed against the applicant for being drunk and disorderly and for being disrespectful in language towards a superior commissioned officer.  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 60 days), a forfeiture of pay (suspended for 60 days), and extra duty for 14 days. 

5.  On 8 December 1981, he was transferred to Herzogenaurauch, Germany for assignment to a field artillery battery.

6.  On 2 February 1982, NJP was imposed against the applicant for being disrespectful in language towards a superior noncommissioned officer and for being drunk on duty.  His punishment consisted of a forfeiture of pay (suspended for 30 days) and extra duty.

7.  On 30 December 1982, NJP was imposed against the applicant for disobeying a lawful order from a superior commissioned officer by having alcohol in the billets.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, extra duty, and restriction.

8.  On 20 April 1983, the applicant was enrolled in Track II of the Alcohol Drug Abuse Prevention Control Program (ADAPCP) due to his alcohol-related driving while intoxicated (DWI) incident.

9.  On 15 June 1983, NJP was imposed against him for driving recklessly while drunk and for hitting another vehicle belonging to a noncommissioned officer.  His punishment consisted of a forfeiture of pay.

10.  On 21 July 1983, the clinical director of the ADAPCP informed the applicant's commander that the applicant's progress during the first 90 days of the program was unsatisfactory because he had four instances of abuse of alcohol which have resulted in one (DWI), one motor vehicle accident, disorderly conduct, and failure to perform as a Soldier (sleeping on guard duty).  The director deemed his potential for rehabilitation as poor.

11.  On 30 August 1983, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 9, due to alcohol rehabilitation failure.  He cited the applicant's continued abuse of alcohol as the basis for his recommendation.

12.  After consulting with defense counsel, the applicant elected to submit a statement in his own behalf, whereas he asserted that during the period of June to September 1983, he had made much progress and did not think it necessary to discharge him just 4 months before the expiration of his term of service (ETS).  He also stated that he believed that he deserved the chance to prove that he was a good Soldier.

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

14.  Accordingly, he was discharged under honorable conditions on 12 October 1983, under the provisions of Army Regulation 635-200, chapter 9, due to alcohol abuse rehabilitation failure.  He had served 3 years, 8 months, and 25 days of total active service.

15.  On 12 December 1996, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 2 April 1997.

16.  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.  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 not provided sufficient evidence to justify an upgrade of his discharge.

2.  The applicant’s contentions and supporting documents have been noted; however, his overall record of service does not constitute fully honorable service.  

3.  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.



      ________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)                                         AR20090003490



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003490



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1