IN THE CASE OF:	  

		BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090006996 


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 be upgraded to honorable.

2.  The applicant did not provide a justification for his request. 

3.  The applicant provides no additional documentary evidence in support of this 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 enlisted in the Regular Army on 8 January 1986 and upon completion of initial entry training was awarded military occupational specialty 91A (Medical Specialist).  

3.  Based on information contained on an undated memorandum from the 
7th Infantry Division (Light), Fort Ord, California, Alcohol and Drug Abuse Control Officer, the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 10 November 1987.  

4.  On 13 December 1988, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being drunk and disorderly, disobeying a lawful order from a noncommissioned officer, and two specifications of disobeying a lawful command from a commissioned officer on 5 November 1988.  The punishment consisted of reduction to the grade of private/E-1, forfeiture of $335.00, extra duty for 30 days, restriction for 30 days, oral admonition, and oral reprimand.

5.  On 17 January 1989, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Chapter 9 of Army Regulation 635-200 (Personnel Separations).  The commander cited as the reasons for the discharge alcohol abuse, rehabilitative failure at ADAPCP, and for being drunk and disorderly on 5 November 1988.  The applicant was advised of his right to consult with counsel, to submit statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive any of those rights.

6.  The applicant submitted a statement in his own behalf.  In this statement, the applicant stated that he fully understood the offenses brought up against him were serious.  He stated, in effect, that his drinking was a result of a previous unfortunate incident.  He also expressed his desire to remain in the service.

7.  On 24 January 1989, the appropriate separation authority directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 9, with the issuance of a general discharge.

8.  On 8 February 1989, the applicant was discharged under the above-cited regulation with a general, under honorable conditions, discharge for alcohol abuse, rehabilitation failure.  His DD Form 214 indicates he completed 3 years, 
1 month, and 1 day of active service.



9.  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 the 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.  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.

10.  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 was enrolled in the ADAPCP and failed to comply with treatment plans and goals, continued to abuse alcohol, and was determined to be a rehabilitative failure.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

2.  The applicant was punished under the Uniform Code of Military Justice for being drunk and disorderly, for disobeying a lawful order from a noncommissioned officer, and for two specifications of disobeying a lawful command from a commissioned officer.  As a result, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  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 has failed to submit evidence that would satisfy that 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)                                         AR20090006996



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ABCMR Record of Proceedings (cont)                                         AR20090006996



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