IN THE CASE OF:	  

		BOARD DATE:	       14 APRIL 2009

		DOCKET NUMBER:  AR20090001200 


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 1997 discharge be upgraded to fully honorable.

2.  The applicant states, in effect, that he would like to have his 1997 discharge upgraded because of the circumstances surrounding his discharge.  It should be noted that although the applicant indicates that he received a dishonorable discharge, he in fact received a general discharge under honorable conditions.

3.  The applicant states he was punished for driving while intoxicated and subsequently punished again when he was suspected of drinking on another occasion.  He states he "completed each disciplinary program successfully" but was still discharged.  He feels this was an injustice and maintains that he did not drink prior to entering the military.  He states there was a lot of unnecessary and unfair treatment in his unit, that his work performance was always exemplary, and that he is still being punished for making one mistake.  He notes this continuously affects his life.

4.  The applicant provides two letters, one from his pastor and one from an officer with the Montgomery, Alabama, Police Department.

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.  Records available to the Board indicate the applicant enlisted in the Regular Army for a period of 4 years on 22 November 1994.  He successfully completed training as an armor crewman and was initially assigned to Fort Bliss, Texas, where he was promoted to pay grade E-2 in May 1995.

3.  The applicant’s file contains a copy of a DA Form 2627 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]) which suggests he may have been punished for being found drunk while on duty on or about 17 July 1995, while at Fort Bliss, Texas.  However, the copy in the applicant’s file is of poor quality and does not appear to have been finalized.

4.  A 29 August 1995 counseling statement notes the applicant was "doing a better job than ever before" and that he had "learned" from his mistakes.  It also noted the applicant needed to continue with his Alcohol/Drug Abuse Prevention and Control (ADAPC) Program.

5.  On 18 September 1995 the applicant received a general officer memorandum of reprimand (GOMOR) following his apprehension by military police on 2 September 1995 for drunk driving.  The GOMOR noted the reprimand was imposed as an administrative measure and not as punishment under Article 15 of the UCMJ.

6.  In November 1995 the applicant was reassigned to Fort Carson, Colorado.  Just prior to his reassignment his unit commander at Fort Bliss, Texas, was informed that the applicant had completed a residential alcohol dependence treatment program and indicated the applicant’s prognosis for successful abstinence was primarily dependent upon the extent to which the applicant followed the conditions of the aftercare plan.

7.  In February 1996 he was advanced to pay grade E-3.

8.  Between September and December 1996 the applicant was counseled on three separate occasions regarding failure to be at his appointed place of duty, not being ready for an inspection, and smelling of alcohol after arriving for duty.
9.  In February 1997 the applicant was punished under Article 15 of the UCMJ for making an official statement with intent to deceive and being absent from duty.  A counseling statement associated with the UCMJ action notes the applicant lied about his whereabouts on 6 December 1996 after reporting to a medical facility where it was determined that he had alcohol in his system.  His punishment included reduction to pay grade E-2, forfeiture of pay, extra duty, and restriction.

10.  A 21 March 1997 memorandum from the clinical director of the ADAPC Program at Fort Carson, Colorado, to the applicant’s unit commander noted the applicant was command-referred to the ADAPC Program on 11 December 1996 as a result of being drunk on duty.  He was evaluated and enrolled in outpatient rehabilitation.  The memorandum noted the applicant had previously been enrolled in the program between 20 July 1995 and 25 September 1996 and attended residential treatment between September and October 1995.  The memorandum stated the applicant had reasonable opportunity for rehabilitation, but without success.

11.  On 3 April 1997 the applicant acknowledged his commander’s intent to recommend discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, for alcohol or other drug abuse rehabilitation failure.  In a 4 April 1997 statement, the applicant admitted he had an alcohol problem.  He stated that he did not come into the Army with this problem but after joining the Army he found he was getting yelled at all the time and that always being away from his family because of field duty was becoming unbearable.  He stated he started to bring his work home and hated the idea that he would have to face his family because he "got kicked out and sent home because he has become an alcoholic even though I didn’t leave home with this problem."  He asked that he be released with an honorable discharge in order to make a better life for himself and provide a better future for his family.

12.  The unit commander’s recommendation that the applicant be administratively discharged as a result of alcohol rehabilitation failure was approved and on 18 April 1997 the applicant was discharged under honorable conditions (general).  He completed 2 years, 4 months, and 27 days of his 4-year enlistment contract.

13.  The statements submitted by the applicant in support of his application both note the authors of the statement have known the applicant since high school.  Both indicated the military changed the applicant and asked that his "dishonorable" discharge be upgraded to honorable.

14.  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 individuals because of alcohol or other drug abuse.  A member who has been referred to an ADAPC Program 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.  The regulation provided for issuance of an honorable or general discharge.

15.  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.

16.  In July 2000 the Army Discharge Review Board denied the applicant’s request to upgrade the characterization of his 1997 discharge.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant and his supporters’ beliefs, he did not receive a dishonorable discharge at the time of his administrative separation from the Army in 1997.  Rather, the applicant was discharged under honorable conditions (general).

2.  The applicant was enrolled in the ADAPC Program on two separate occasions and underwent residential treatment as well.  The applicant 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 which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

3.  The fact that the applicant may not have abused alcohol prior to his entry in the Army is not sufficiently mitigating to excuse his abuse of the alcohol after he enlisted.  He has provided no evidence which would serve as a basis to excuse his behavior in view of the fact that the Army attempted to provide the applicant with help via various outpatient and residential treatment programs.

4.  There is no evidence in the applicant's records that he was singled out for punishment.  The applicant's separation packet shows that the applicant admitted to understanding the basis for his discharge.

5.  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 the aforementioned requirement.  In view of the foregoing, there is no basis for granting the applicant's 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.



      ____________XXX_____________
                 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)                                         AR20090001200



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ABCMR Record of Proceedings (cont)                                         AR20090001200



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