IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100007438 


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 his general under honorable conditions discharge (GD) be upgraded to honorable.

2.  The applicant states that as a result of alcohol-related offenses under Article 15 of the Uniform Code of Military Justice (UCMJ), his company commander told him to take a general discharge or face a dishonorable discharge if he chose to stay in.  He contends he was underage and was taken advantage of because he did not know his company commander could not do what he did.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 Regular Army on 17 October 1985 for a period of 4 years.  He completed basic and advanced individual training and was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).

3.  The applicant's records show he was charged with three offenses under Article 15 of the UCMJ:

* on or about 7 October 1986 for using disrespectful language to a noncommissioned officer, willfully disobeying a lawful order, and assaulting a noncommissioned officer
* on or about 30 December 1986 for willfully destroying government property by breaking glass on a bulletin board
* on or about 1 August 1987 for failing to go at the prescribed time to his appointed place of duty

4.  On 2 February 1987, the applicant was referred by his commander to the Fort Eustis Counseling Center for evaluation for his involvement in an alcohol-related incident.  He was diagnosed with being alcohol dependent and was enrolled in the Alcohol and Drug Prevention and Control Program (ADAPCP).

5.  On 3 April 1987, the clinical director of the ADAPCP notified the applicant's commander that he was declared a rehabilitative failure and would be processed for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9.

6.  On 4 September 1987, the applicant's commander notified him he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  He cited the applicant's inability to voluntarily control his personal abuse of alcohol and his failure to successfully complete ADAPCP as the basis for his recommendation.  As a result, he was considered a rehabilitative failure.

7.  After consulting with counsel, the applicant waived his rights.  He chose not to request treatment in a Veterans Administration medical center; however, he did elect to submit a statement on his own behalf.  In his statement, he admitted he had a drinking problem and requested that he be given an honorable discharge rather than a GD.  He stated he had served in the Army for 24 months and had always worked hard.  He contended his attitude had always been positive and he had always completed his work.  He added that his punishments under the UCMJ were all alcohol-related which was indicative of the extent of his problem with alcohol.  He pleaded not to be punished for being an alcoholic and stated that his father was an Army retired sergeant major.

8.  On 24 September 1987, the separation authority, the battalion commander, approved the recommendation for discharge and directed that the applicant be furnished a GD with his service characterized as under honorable conditions.  The applicant was discharged on 29 September 1987 in pay grade E-1.  He had a total of 1 year, 11 months, and 13 days of creditable service.

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

10.  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 the Army's 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.

11.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge from a GD to an honorable discharge was carefully considered; however, it is not supported by the evidence provided.

2.  The applicant was enrolled in the ADAPCP in February 1987; however, in April 1987 he was declared a rehabilitative failure.  The evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure and was furnished a GD under honorable conditions.

3.  The applicant has provided no evidence to show the discharge classification of general under honorable conditions he received in 1987 was unjust, inequitable, or improper.  His company commander was within his rights to initiate separation, and the battalion commander was within his rights to approve the discharge.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is no basis to grant the requested relief.

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)                                         AR20100007438



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ABCMR Record of Proceedings (cont)                                         AR20100007438



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