IN THE CASE OF:	  

		BOARD DATE:	      20 October 2009

		DOCKET NUMBER:  AR20090009630 


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 an honorable discharge and that his DD Form 214 (Certificate of Release or Separation from Active Duty) be corrected to show his proper dates of service. 

2.  The applicant states, in effect, that he joined the Army in January 1982, was discharged in August 1984, and that he spent 18 months in Europe.  He states that his service dates on his DD Form 214 are wrong and that he wants an honorable discharge not a general discharge.  He also states that a noncommissioned officer in Germany discriminated against him. 

3.  The applicant provides, in support of his application, a copy of his General Discharge Certificate, dated 5 August 1983; and his Certificate of Enlistment, dated 23 January 1982.

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 U.S Army Reserve Delayed Entry Program (DEP) on 23 January 1982 and in the Regular Army on 25 January 1982 for a 3-year period of service.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 12C (Bridge Crewman).

3.  The applicant's service records contain copies of DA Forms 4856 (Developmental Counseling Form) for the period 18 June 1982 to 17 November 1982.  His initial counseling, on 4 June 1982, defined his duty performance objectives, expected military attitude, military appearance, and acceptable standards for off-duty conduct while stationed in a foreign country.  A second counseling form shows the applicant had a new first-line leader who stated, in effect, that the applicant met or exceeded duty performance standards, on 30 August 1982.  This same counselor, on 17 November 1982, stated on a general counseling form that the applicant was exhibiting a poor military attitude. 

4.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions, the first for disobeying a lawful order from a superior noncommissioned officer and disrespectful language on 24 November 1982.  On 28 January 1983, the applicant received his second NJP for failure to go to his appointed place of duty.  Records show that these incidents were the indirect result of the applicant's excessive consumption of alcohol.

5.  On 28 January 1983, the applicant's company commander referred him to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for three alcohol-related incidents in military barracks.

6.  On 3 February 1983, the applicant was screened by the drug and alcohol rehabilitation team which recommended the applicant be enrolled in Track I of the ADAPCP.

7.  The applicant's company commander approved the ADAPCP recommendation on 7 February 1983 and enrolled him in this program. 

8.  In a letter, dated 1 May 1983, the acting clinical director for the ADAPCP stated the applicant was enrolled in Track I and that he participated in seven educational awareness sessions and two individual counseling appointments.  The director further states the applicant's progress within the first 90 days was unsatisfactory with two reported alcohol-related incidents in the barracks.  She concluded her letter by stating the applicant's potential for successful rehabilitation was poor.  

9.  On 23 May 1983, the applicant's company commander notified him that he was initiating action to discharge him under the provisions of chapter 9 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to his failure to complete the ADAPCP.  The commander advised the applicant that he could receive a General Discharge Certificate.

10.  The commander advised the applicant of his right to submit statements in his own behalf, to obtain copies of all documents used in the preparation of his separation packet, to consult with and be represented by military counsel or civilian counsel at his personal expense, and to waive any of these rights within seven days of notification and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  He also was advised of his right to request alcohol abuse treatment at a Veterans Administration (VA) medical center.

11.  In a statement, dated 26 May 1983, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 9 of Army Regulation 635-200 for alcohol abuse rehabilitation failure.  The applicant acknowledged that he may expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him.  The applicant requested and was provided counsel prior to waiving his rights.  Records show that the applicant did not submit a statement in his own behalf or request treatment at a VA medical center.   

12.  On 31 May 1983, the applicant's company commander recommended him for discharge under the provisions of chapter 9 of Army Regulation 635-200 due to his failure to complete the ADAPCP rehabilitation program.  He recommended that the applicant receive a General Discharge Certificate upon separation.

13.  The applicant's records do not contain the approval document for the applicant's commander's recommendation.  However, it is presumed that the appropriate authority approved the recommendation for discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed that the applicant be furnished a General Discharge Certificate.  

14.  Accordingly, on 5 August 1983, Order 171-2 discharged the applicant under the provisions of chapter 9 of Army Regulation 635-200 due to alcohol rehabilitation failure.  He received a DD Form 214 upon separation that shows he completed 1 year, 6 months, and 11 days of active Federal service this period; that he was credited with 1 year, 2 months, and 20 days of foreign service credit; and that his characterization of service was under honorable conditions.  

15.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 5 (Overseas Service) the entry "From 820514 Thru 830804."  These dates equate to 1 year, 2 months, and 20 days of foreign service credit.  

16.  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 Army Drug and Alcohol Prevention and Control Program (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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time for alcohol rehabilitation failure.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

2.  The applicant contends that his dates of service are incorrect on his DD Form 214, yet his service record shows he enlisted in the Regular Army on 25 January 1982, and was discharged on 5 August 1983 pursuant to alcohol rehabilitation failure under the provisions of chapter 9 of Army Regulation 635-200 and not in the year 1984 as he states in his application.  

3.  The applicant's contention that his foreign service dates are incorrect on his DD Form 214 is unfounded for his DA Form 2-1 shows he served for 1 year,        2 months, and 20 days which is accurately recorded on the applicant's separation record. 

4.  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 that requirement.

5.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or change his ending service date on his DD Form 214.

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)                                         AR20090009630



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ABCMR Record of Proceedings (cont)                                         AR20090009630



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