IN THE CASE OF:	  

		BOARD DATE:	       28  July 2009

		DOCKET NUMBER:  AR20090004331 


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 and the reason for separation be changed from alcohol abuse and rehabilitation failure to, in effect, a more favorable reason.

2.  The applicant states that he drank too much in only two instances.  The first was when he arrived in Germany and his roommate took him out and the two of them got drunk and the second time was when he got drunk at his sergeant's house.  His sergeant gave him the keys to his car and told him to go home which resulted in an accident and severe personal injury.  He adds that he was not offered any type of treatment or help.

3.  The applicant did not provide any additional documentary evidence in support of his 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 4 years on 9 February 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant's records also show he served in Germany from on or around 19 January 1983 to on or around 30 December 1984 and was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 4 March 1984, the applicant was apprehended by the Military Police at Rose Barracks, Bad Kreuznach, Germany, after a preliminary investigation revealed that he was observed standing next a vehicle with shattered glass.  Upon being apprehended, the applicant was determined to be highly intoxicated.

5.  On 24 August 1984, the applicant was again apprehended by the Military Police at Rose Barracks after a preliminary investigation revealed that he kicked and hit government property at the unit motor pool while intoxicated.

6.  On 29 August 1984, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for willfully causing damage to government property valued at $55.00 by kicking and hitting two drain pipes at the unit maintenance motor pool on or about 24 August 1984 and being drunk and disorderly on or about 24 August 1984.  His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended for 180 days), a forfeiture of $150.00 pay, and 45 days of extra duty.

7.  On 15 October 1984, the clinical director of the Community Counseling Center, Bad Kreuznah, Germany, issued a supplemental report to the applicant's immediate commander in which he stated that the applicant was initially referred to the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 28 March 1984 because of an alcohol-related incident (destruction of government property) which appeared on the Military Police report.  He was enrolled in Track II on 10 April 1984 and was provided with a total of 12 hours of education awareness classes along with 6 months of scheduled weekly group counseling sessions and/or one-on-one sessions.  He was then arrested by Military Police on 24 August 1984 for malicious destruction of government property when he had been drinking.  After this incident and because of his long history of abusing alcohol, necessary steps were taken to enroll him in Track III at Landstuhl Army Medical Center and an admission date was established.  However, on 1 October 1984, the applicant's immediate commander reported that during a command directed urinalysis, the applicant's sample revealed traces of tetrahydrocannabinol (THC).  In view of this information, the applicant's potential for rehabilitation appeared poor.

8.  On 28 November 1974, the suspension of the applicant's punishment to reduction to PFC/E-3 (suspended for 180 days) was vacated as the applicant was reported to have operated a vehicle while drunk on or about 22 November 1984.

9.  On 4 December 1984, 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 cited the specific reasons for this action as the applicant's poor potential for rehabilitation of alcohol abuse and continued abuse rendered him an alcohol abuse rehabilitation failure.

10.  On 4 December 1984, 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 and elected not to submit a statement on his own behalf.

11.  On 4 December 1984, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of ADAPCP rehabilitation failure.

12.  On 4 December 1984, 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.  The applicant was accordingly discharged on 31 December 1984.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a characterization of service of under honorable conditions (general) by reason of being a drug abuse rehabilitation failure.  This form further confirms he completed a total of 2 years, 10 months, and 22 days of creditable military service.
13.  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.

14.  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 (emphasis added).  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.

15.  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 and the narrative reason for separation should be changed.

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, was involved in an accident while drunk, and tested positive for THC.  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.  The applicant was discharged under the provisions of chapter 9 of Army Regulation 635-200 due to alcohol abuse-rehabilitation failure.  Absent his rehabilitation failure, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his failure to be rehabilitated from his alcohol abuse.  The only valid narrative reason for separation permitted under that paragraph is "alcohol abuse - rehabilitation failure."

4.  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.

5.  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)                                         AR20090004331



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ABCMR Record of Proceedings (cont)                                         AR20090004331



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