IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014034 


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 the separation authority and narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to a more favorable authority and reason.

2.  The applicant states, in effect, that he was unaware of the effect the separation authority and narrative reason for separation would have on him. 

3.  The applicant provides no additional documents.

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.  On 15 August 1989, the applicant enlisted in the Regular Army for a period of 4 years, training as a motor transport operator, assignment to Fort Ord, California, and a cash enlistment bonus.  He completed one-station unit training (OSUT) at Fort Leonard Wood, Missouri and he was transferred to Fort Ord for his first permanent duty assignment.

3.  On 21 November 1990, he extended his enlistment for a period of 9 months to complete the service remaining requirements for assignment to Germany.  He was advanced to the pay grade of E-4 on 15 October 1991 and on 29 November 1991, he was transferred to Germany.

4.  On 26 May 1993, the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for out-patient treatment while pending in-patient services.  On 28 July 1993, the ADAPCP Division deemed him a rehabilitation failure due to noncompliance with the treatment plan, absences from scheduled sessions, and continued use of alcohol while enrolled.

5.  On 15 November 1993, his commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse rehabilitation failure.  The commander cited as the basis for his recommendation that the applicant enrolled in Track II of the ADAPCP, on 26 May 1993, and his progress had been poor due to noncompliance with the treatment plan, absences from scheduled sessions and continued abuse of alcohol while enrolled.  Accordingly, he was deemed a rehabilitative failure. 

6.  After consulting with defense counsel, the applicant waived his rights and elected to submit a statement in his own behalf whereas he requested that he be allowed to remain in the Army until his dental work was completed in              Mid-December 1993.  He went on to state that his duty performance had never been questioned and he deserved consideration of his request based on his hard work.

7.  The appropriate authority approved the recommendation for discharge on 8 December 1993 and on 3 January 1994, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 9, for Alcohol Rehabilitation Failure.  He had served 4 years, 4 months and 19 days of total active service.




8.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board to have the reason and authority for his discharge changed within that board’s 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 of that regulation contains the authority and outlines the procedures for discharging individuals because of alcohol and/or drug abuse.  A member may be separated because of inability or refusal to participate in, or successfully complete a rehabilitation program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Characterization of service will be determined solely by the Soldier’s military record that includes the Soldier’s behavior and performance during the current enlistment.  An honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation authority and narrative reason for separation on his DD Form 214 should be changed to a more favorable authority and reason.

2.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no evidence of any violations of the applicant’s rights.  Accordingly, he was discharged under the proper authority and was assigned the proper narrative reason for separation as required by the applicable regulations.

3.  The applicant has not provided any evidence and the record does not contain any evidence or establish a basis for changing the reason or authority for the applicant’s discharge.  Accordingly, there is no basis to support his request at this time.

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 this 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)                                         AR20090014034



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ABCMR Record of Proceedings (cont)                                         AR20090014034



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