IN THE CASE OF:	

		BOARD DATE:	3 September 2009 

		DOCKET NUMBER:  AR20090007348 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge in order for him to become eligible for full benefits.

2.  The applicant states that while on active duty, he was offered an "Early Out" with the assurance that he would receive an honorable discharge and that it would not have any effect on his eligibility for Veterans Affairs (VA) benefits.  He continues that after receiving his DD Form 214 (Certificate of Release or Discharge from Active Duty) he realized he had been given a general discharge under honorable conditions.  The applicant concludes that he served 16 months on active duty with no disciplinary problems and he believes that he is entitled to an honorable discharge.

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's record shows he participated in the Delayed Entry Program during the period 26 August 1985 through 15 October 1985.  The applicant enlisted in the Regular Army and entered active duty on 16 October 1985.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  The highest rank the applicant attained while serving on active duty was private (PV2)/pay grade E-2; however, at the time of separation he held the rank of private (PVT)/pay grade E-1.  His only permanent duty station was Fort Ord, California.

3.  A DA Form 2627 (Record of Proceedings Under Article 15 of the UCMJ (Uniform Code for Military Justice)), dated 2 September 1986, shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order from a commissioned officer and assaulting a Soldier.  These offenses were in violation of Articles 90 and 128 of the UCMJ, respectively.  His punishment consisted of reduction to PVT/E-1, 14 days of extra duty, and 14 days of restriction.

4.  A DA Form 3997 (Military Police Desk Blotter), dated 23 November 1986, shows the applicant was arrested along with five other Soldiers for being involved in a physical altercation for unknown reasons.

5.  A DA Form 4856 (General Counseling Form), dated 25 November 1986, shows the applicant received monthly counseling from a noncommissioned officer (NCO).  The NCO, in effect, informed the applicant that his job performance was fair, but he still needed to work on his sense of urgency and taking his job seriously.  The NCO also noted that the applicant got himself into trouble when he was off duty by getting into fights and getting drunk.  The NCO concluded by informing the applicant that he was uncertain of the impact of the most recent incident, but it appeared as though the applicant would be separated from the Army.

6.  A Boeblingen-Bindelfingen Military Community, Letter, Subject:  Synopsis of Rehabilitation Activities, dated 4 December 1986, was rendered by the Clinical Director in response to a request for information received from the applicant's 

company commander.  The Clinical Director opined that the applicant's progress in the program had been unsatisfactory and that his potential for successful 
rehabilitation was very poor.  This opinion was based on the fact that the applicant had another alcohol-related incident while enrolled in Track II of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), currently known as the Army Substance Abuse Program.  The applicant's motivation to change seesawed with the anxiety of the situation in which he would find himself. The Clinical Director concluded that the applicant clearly lacked the motivation it took to work a long-term recovery program.  As a result, the applicant was declared a rehabilitation failure for noncompliance with the requirements of the treatment program. 

7.  A Headquarters and Headquarters Company, 1st Battalion, 16th Infantry Regiment, letter, dated 5 December 1986, shows the unit commander notified the applicant of the initiation of separation action against him under the provisions of Chapter 9 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of failure of ADAPCP.  The applicant was advised that this determination had been made in consultation with the rehabilitative team at the Panzer Community Care Clinic.  The commander informed the applicant that if the separation action was approved, he would be issued a general discharge under honorable conditions.  The commander informed the applicant that he may submit comments in his own behalf to be considered by the discharge authority along with the commander's recommendations for elimination.  The applicant was also advised that he may request military legal counsel to assist him in preparation of his comments.  In closing, the commander informed the applicant that he must undergo a complete medical examination prior to separation and that he may request treatment in a VA Medical Center.  The applicant acknowledged receipt of this notification on 5 December 1986.

8.  On 23 January 1987, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to submit a statement in his own behalf.  He also indicated that he desired treatment in a VA Medical Center.

9.  The separation authority approved the applicant's discharge and directed that he be issued a General Discharge Certificate.  Boeblingen Composite Team, 198th Personnel Service Company, Orders 21-67, dated 3 February 1987, reassigned the applicant to the United States Army Transfer Point, Fort Dix, New Jersey, for separation processing with a discharge date of 10 February 1987.


10.  Accordingly, the applicant was discharged under the provisions of Chapter 9 of Army Regulation 635-200 by reason of alcohol abuse rehabilitation failure.  This form also shows that he received an under honorable conditions characterization of service.  He was separated on 10 February 1987 and was credited with completing 1 year, 3 months, and 25 days of active duty service.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  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.  At the time of the applicant’s separation an honorable or general discharge was authorized.

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's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Although the applicant contends that he was unaware of the possibility that he could receive a general discharge under honorable conditions, the evidence clearly shows that he was made aware of that when he was initially informed by his commander that he was being considered for separation.  This fact was also reiterated on several documents in the applicant's discharge packet.

3.  The applicant, by violating the Army's policy not to abuse alcohol and illegal drugs, compromised the special trust and confidence placed in him as a Soldier.  

The applicant had the duty to support and abide by the Army's alcohol and drug abuse policies.  By abusing alcohol, the applicant knowingly risked his military career.

4.  The available evidence shows the command attempted to assist the applicant by providing him alcohol/drug counseling and by the imposition of NJP.  The applicant was enrolled in the ADAPCP and he was aware of the consequences of any action which would demonstrate an inability or refusal to participate in, cooperate in, or successfully complete the program.  The applicant failed to respond appropriately to these efforts.

5.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

7.  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 any evidence that would satisfy this requirement and there is no basis for granting his request.

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)                                         AR20090007348



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ABCMR Record of Proceedings (cont)                                         AR20090007348



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