IN THE CASE OF:	 

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090012358 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that the characterization of his discharge is inequitable and not consistent with the policies and traditions of the U.S. Army.  He also states that all of his disciplinary problems, civilian and military, arose as a direct result of his continuous abuse of alcohol and other mind-altering drugs.  The applicant claims that he became addicted to alcohol, marijuana, and other drugs after entering the Army.  He contends that the Army knew or should have known of this problem and he should have been treated for his addiction by the Army when the problems first arose.  Instead, the Army allowed his improper conduct to continue until he was discharged.  The applicant states that he was an addict when he was discharged and his pattern of improper conduct continued as a result of that action.  He contends that had he been treated for substance abuse, that pattern of lifestyle could and should have been corrected.  The applicant concludes that an upgrade to an honorable discharge will improve his employment opportunities without stigma attached.

3.  The applicant provides a letter from the Veterans Coordinator of a rehabilitation facility as 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 enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 4 May 1983.  He was discharged from the USAR DEP on 5 May 1983 and he enlisted in the Regular Army (RA) on 6 May 1983.  He completed basic combat and advanced individual training (AIT). Upon completion of AIT, he was awarded military occupational specialty (MOS) 72E (Telecommunications Center Operator).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of separation he held the rank/grade of private (PV1)/E-1.

3.  The applicant's record contains a Letter of Reprimand, dated 15 May 1984, which shows his unit commander reprimanded him for failing to secure and dispose of classified materials in the proper manner.  The applicant's unit commander also warned him that his continual poor duty performance would result in disciplinary actions being taken against him under the provisions of the Uniform Code of Military Justice (UCMJ).

4.  The applicant's record contains a DA Form 4856 (General Counseling Form), dated 25 May 1984, which shows he was counseled for substandard performance, lack of knowledge and understanding of his duties, and inattention to detail.  The counselor informed the applicant that such performance would not continue to be tolerated.  The counselor also informed the applicant that he would receive additional training and instruction in the areas he did not understand.  He concluded by informing the applicant that unless his duty performance improved, he could expect to be transferred to duties more suitable for his abilities.  The applicant concurred with the observations and recommendations of this counseling session.


5.  The applicant's record contains a DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ), dated 4 June 1984, which shows he was disciplined for violating Articles 134 and 140 of the UCMJ by being drunk and disorderly.

6.  The applicant's record contains a DA Form 4856, dated 13 July 1984, which shows he was counseled for being drunk and disorderly and fighting.  The counselor noted that the applicant had previously stated that he had a drinking problem, which he tried to control, but continued to be a problem.  The counselor also noted that he had recommended the applicant be referred to a Certified Drug and Alcohol Abuse Counselor.  The applicant concurred with the observations and recommendations of this counseling session.

7.  The applicant's record contains a DA Form 2496 (Disposition Form), dated 19 November 1984, which shows the applicant's unit commander initiated action to have him disqualified from the Personnel Reliability Program (PRP) for drug abuse.  On 28 November 1984, the applicant submitted a statement refuting his disqualification.  The applicant was permanently disqualified from the PRP on 4 December 1984.

8.  The applicant's record contains a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), initiated on 21 November 1984, which shows he violated Article 112a of the UCMJ by wrongfully using a controlled substance (marijuana).

9.  The applicant's record contains a DA Form 4856, dated 14 December 1984, which shows he was counseled by his unit commander for his poor duty performance since arriving at the unit.  The unit commander stated that the applicant's lack of motivation and his failure to meet unit standards had caused him to consider initiating separation action under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The unit commander cited the applicant's disciplinary history and advised him that unless his performance and behavior improved, he would initiate chapter 13 separation action against him.

10.  The applicant's record contains a letter, dated 17 January 1985, which shows the applicant's unit commander initiated action to have him barred from reenlistment due to his failure to perform the basic tasks in his MOS, as well as using a controlled substance (marijuana).  The unit commander opined that the applicant was a substandard performer who shirked his duties, could not train for a job, and was unable to adapt to military life.  As a result, he concluded that the applicant was not worthy of retention in the United States Army.  On 18 January 1985, the applicant's Bar to Reenlistment Certificate was approved.
11.  The applicant's record contains a DA Form 4856, dated 18 January 1985, which shows he was counseled by his unit commander regarding his unsatisfactory duty performance since being permanently disqualified from the PRP.  The unit commander stated, in effect, that in spite of previous counseling and rehabilitative efforts, the applicant's duty performance had taken a turn for the worse.  The unit commander informed the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 13.  He also informed the applicant that he had the right to appeal this action within 15 days of this notification.

12.  On 28 January 1985, the applicant’s unit commander notified him, in effect, that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, for unsatisfactory performance.  He specifically stated that the applicant had demonstrated a complete inability to perform as a Soldier.  He had shown a complete disregard for the military standards of conduct and his behavior was extremely poor toward his superiors and supervisors.  The unit commander continued that the applicant's ability to perform his duties effectively in the future was nonexistent, his potential for advancement and/or leadership in the future was unlikely, and his potential for continued service was negligible.

13.  The unit commander informed the applicant that his proposed separation could result in discharge, release from active duty to a reserve component, or release from custody and control of the Army.  The unit commander also informed the applicant that he could receive a general, under honorable conditions discharge.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written 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 these rights in writing.

14.  On 28 January 1985, the applicant acknowledged receipt of the unit commander's notification and the fact that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.
The applicant was also informed that if he were issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.  Following his consult with legal counsel, the applicant requested representation by military counsel.

15.  On 28 January 1985, the applicant’s unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory duty performance.  The unit commander stated that the applicant had shown contempt for authority.  He also stated that the applicant 
had various personal problems that had affected his military performance as well as a complete disregard for the military standards of conduct.  The unit commander added that the applicant's duty performance was completely unsatisfactory and when transferred to a different job, he had continued to perform poorly under all supervisors.  The unit commander opined that:

	a.  the applicant would not develop to become a satisfactory Soldier and that further efforts at training would continue to produce less than desirable results;

	b.  the applicant's continued retention in his unit or any other unit would have an adverse impact on military discipline, good order, and morale;

	c.  it was likely that circumstances forming the basis for this action would continue or recur based on the applicant's established habits; and

	d.  the applicant's ability to perform duties in the future were nonexistent, and his potential for advancement and/or leadership in the future were unlikely.

16.  Although the applicant's pre-separation status evaluations are listed as enclosures to his discharge packet, none are present in the applicant's available records.

17.  On 12 March 1985, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, and that he be issued a General Discharge Certificate.

18.  On 18 March 1985, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows that he received an "Under Honorable Conditions" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of chapter 13 of Army Regulation 635-200.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JHJ."  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance."

19.  There is no evidence in the available record that indicates the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

20.  The applicant provides a letter, dated 7 July 2009, rendered by the Veterans Coordinator employed by People in Progress located in Sun Valley, CA.  The Veterans Coordinator stated, in effect, that the applicant had shown considerable 
progress since entering their rehabilitation program on 3 April 2009.  He continued that the applicant interacted well with both staff and other residents, and he had been cooperative and in compliance with all rules and regulations of the program.  He also stated that all random tests for substance abuse had been negative and the applicant had completed all aspects of the 12-step dynamics dealing with the first three steps.  The Veterans Coordinator opined that in view of the constructive path that the applicant has taken to address the corrective issues that lie before him, his current efforts to upgrade the character of his discharge from military service will certainly help him establish a healthier level of self-esteem.

21.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

22.  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 general, under honorable conditions discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

3.  Although alcohol and drug use were among the applicant's disciplinary infractions, it is apparent that his chain of command determined that they were not the root cause for his poor performance and behavior.  The applicant's pre-separation medical and mental status evaluations are not available for review; however, evidence indicates they were conducted prior to the submission of the unit commander's request for the applicant's administrative separation.  Evidence also shows the applicant received both legal consult and legal representation throughout the discharge process, and as such, Government regularity insofar as the discharge process must be presumed.  It is presumed 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.

4.  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.  Therefore, he is not entitled to an upgrade of his general, under honorable conditions discharge to an honorable discharge or to have the narrative reason for separation changed.

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)                                         AR20090012358



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ABCMR Record of Proceedings (cont)                                         AR20090012358



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