IN THE CASE OF:	

		BOARD DATE:	13 August 2009  

		DOCKET NUMBER:  AR20090005210 


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 under honorable conditions (general) discharge to fully honorable.

2.  The applicant states that there was no error on the Army's behalf and that he made some mistakes by getting involved with the wrong crowd.  However, he has changed since and has been serving as a missionary for the past 12 years.  He would like a second chance to reenter military service.

3.  The applicant provides an undated self-authored statement; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 17 October 1986; and a character reference letter, dated 22 March 2009, 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 3 years on 19 July 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty 31V (Tactical Communications System Operator).  The highest rank/grade he attained during his military service was private first class/E-3

3.  The applicant's records also show he served in Germany from on or around 4 January 1985 to on or around 16 October 1986 and was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant's record reveals a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 7 May 1986, for operating a vehicle while drunk on or about 16 April 1986.  His punishment consisted of a reduction to private/E-2, a forfeiture of $167.00 pay, 14 days of extra duty, and 14 days of restriction; and

	b.  on 7 July 1986, for wrongfully using a controlled substance between 3 May 1986 and 3 June 1986.  His punishment consisted of a reduction to private/E-1, a forfeiture of $149.00 pay, 14 days of restriction, and 14 days of extra duty.

5.  On 20 July 1986, the clinical director of the Community Counseling Center, Sullivan Barracks, Germany, issued a synopsis of the applicant's Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) activities.  The director stated that the applicant was initially enrolled in ADAPCP on 7 August 1985 as a result of alcohol abuse (drunk and disorderly, larceny, and destruction of private property).  He was enrolled in Track II rehabilitation and participated in 12 hours of awareness education, one session of individual counseling, and ten sessions of group counseling.  His progress during counseling was marginal.  However, due to completion of his recommended program of treatment, he was disenrolled as a rehabilitation success on 11 February 1986.  The director adds that on 23 April 1986, the applicant was again referred to ADAPCP after an incident of drunken driving and operating a vehicle without a license.  He was offered an opportunity to continue in counseling but he refused to address the new issues related to his continued abuse of alcohol and appeared unwilling to participate in further ADAPCP counseling.  His potential for successful rehabilitation was therefore considered to be poor and the ADAPCP recommendation was to separate the applicant.

6.  On an unknown date, 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 positive test for a controlled substance on a recent unit urinalysis, poor potential for rehabilitation of alcohol abuse, and continued abuse that rendered him an alcohol abuse rehabilitation failure.

7.  On 26 August 1986, 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.

8.  On 1 September 1986, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of ADAPCP rehabilitation failure.

9.  On 10 September 1986, 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 17 October 1986.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed a total of 2 years, 2 months, and 29 days of creditable military service.

10.  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.

11.  The applicant submitted a self-authored statement and a character reference letter in support of his request as follows:

	a.  In an undated self-authored statement, the applicant stated that he has no excuse for his actions and that his lack of maturity at the time led to those actions.  However, he has since put his past behind him and has become a missionary.  He would like the opportunity to serve his country again.
	b.  In a character reference letter, dated 22 March 2009, a military chaplain endorses the applicant's desire to reenter military service and states that the applicant is a motivated, trustworthy, and honest man.

12.  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.

13.  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.

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 a controlled substance.  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's self-authored statement and his character reference letters were noted.  However, based on his record of ADAPCP failure, alcohol-related incidents, and two instances 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's service does not warrant an honorable discharge.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 that requirement.  Therefore, the applicant 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)                                         AR20090005210



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ABCMR Record of Proceedings (cont)                                         AR20090005210



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