IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100010559 


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:

* the narrative reason for his discharge be changed
* his reentry eligibility (RE) code be changed to allow him to enlist
* his general discharge be upgraded to an honorable discharge

2.  The applicant states that after destroying his room and most of his belongings, his commander gave him a choice of leaving the military or going to a program for alcohol abuse.  He accepted responsibility for his actions and signed for the discharge with the understanding that he would be given an automatic upgrade after 2 years.  He tried to enlist in the past and was denied due to the DD Form 214 (Certificate of Release or Discharge from Active Duty) he accepted.

3.  The applicant states he was out with friends and had a couple of beers.  When he returned to his barracks he destroyed his room and it took several other Soldiers to hold him down.  He was hospitalized and has no memory of the incident.  He later found out that another Soldier from another base had put something in his drink.  The other Soldier was later found to be in possession of narcotics.  The applicant's commander did not believe his version of the incident and gave him a choice of leaving the military or going to a program for alcohol abuse.  He states that due to his immaturity he chose to separate for alcohol rehabilitation failure.

4.  The applicant states that since his discharge he has led an honorable life, having attended college and received criminal justice and psychology degrees.  He got married and has three children.  He has had no legal issues and has been a volunteer for the local soccer and little league teams in his city as a coach.  He states he has been denied a job in law enforcement due to the reference to drugs and alcohol on his DD Form 214.  He spent 15 years as a Regional Investigator for Loss Prevention and has received several awards for excellence in service with the company.

5.  The applicant provides no additional evidence in support of his 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 military personnel records show he enlisted in the Regular Army on 19 June 1985 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  On 12 November 1985, he was assigned to Battery B, 1st Battalion, 30th Field Artillery, in Germany.

3.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on:

* 6 September 1985 for failure to obey a lawful order from a noncommissioned officer (NCO)
* 17 March 1986 for two specifications of disrespectful language toward an NCO and being drunk and disorderly
* 28 May 1986 for communicating a threat to kill an unknown individual, attacking an NCO, and failure to obey a lawful order from an NCO

4.  A memorandum for the record, dated 19 May 1986, stated that on 6 March 1986 the applicant was referred by his commander to the Augsburg Community Counseling Center for evaluation of alcohol abuse.

	a.  Based on evaluation results, it was determined the applicant had problems significant enough to warrant enrollment in Track II.

	b.  Due to the Soldier's subsequent alcohol-related incident, his commander declared him a rehabilitation failure.

	c.  On 14 May 1986, it was determined:

* he had not made satisfactory progress toward achieving the criteria for successful rehabilitation
* further rehabilitation efforts in a military environment were not justified in light of his lack of retainability
* he should be discharged from the military service

5.  On 27 May 1986, a psychiatrist examined the applicant.  The examiner stated the applicant had been hospitalized in early March 1986 for alcohol intoxication and was referred for treatment of alcoholism, but has continued to drink.  He diagnosed the applicant with a mixed personality disorder.  The examiner stated it was inevitable the applicant would become involved in further significant incidents to everyone's detriment and recommended that he be discharged at the very earliest moment.  The examiner determined the applicant was:

* responsible for his actions
* cleared for administrative action deemed appropriate by his command
* remained impervious to assistance to alter his outlook and behavior
* must be supervised to abstain totally from alcohol

6.  On 5 June 1986, the applicant was given a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

7.  On 24 June 1986, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 9 of Army Regulation 635-200 (Personnel Separations).  The commander further advised the applicant that if his recommendation were approved he would receive an honorable or general discharge.

8.  The commander advised the applicant of his right:

* to consult with counsel
* to submit statements in his own behalf
* to obtain copies of documents that would be sent to the separation authority
* to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

9.  On 24 June 1986, the applicant acknowledged that he had been advised by counsel:

* of the basis for the contemplated action against him under the provisions of chapter 9 of Army Regulation 635-200 for drug rehabilitation failure
* the effects of such a discharge
* the rights available to him
* the effect of any action taken by him in waiving his rights

10.  He did not submit statements in his behalf for consideration.

11.  The applicant's commander recommended him for discharge under the provisions of chapter 9 of Army Regulation 635-200 due drug rehabilitation failure.

12.  The appropriate authority approved the recommendation for discharge under the provisions of chapter 9 of Army Regulation 635-200, waived further rehabilitative transfer, directed an RE code of RE-3, and directed that the applicant be furnished a General Discharge Certificate.

13.  On 17 July 1986, the applicant was discharged under the provisions of chapter 9 of Army Regulation 635-200 due to drug rehabilitation failure.  He had completed 1 year and 29 days of active service that was characterized as under honorable conditions.

14.  Item 28 (Narrative Reason for Separation) of the applicant's DD Form 214 contains the entry "alcohol abuse – rehabilitation failure."  He was assigned the RE code RE-3, 3C.

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


16.  References:

	a.  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 Alcohol and Drug Abuse 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.  At the time of the applicant's separation an honorable or general discharge was authorized.  However, an honorable discharge was required if restricted use information was used.

	b.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  This chapter included a list of Armed Forces RE codes and waivable disqualifications.

		(1)  Table 3-6 showed that RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable.  Table 3-6 also showed RE-3C applies to persons who had completed over 4 months of service who do not meet the basic eligibility pay grade requirements.

		(2)  Table 4-1 listed waivable moral and administrative disqualifications.  Line O of Table 4-1 provided that being separated under chapter 9 of Army Regulation 635-200 was a waivable disqualification.  Line AE of Table 4-1 provided that receiving a general discharge under honorable conditions when last separated from the U.S. Army was a waivable disqualification.

	c.  Army Regulation 635-200 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 contends that the narrative reason for his discharge and his RE code should be changed to enable him to enlist.  He also contends that his general discharge should be upgraded as he was told it would be upgraded 2 years after his discharge.

2.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  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.  Therefore, there is insufficient basis to change the narrative reason for the applicant's discharge.

3.  The separation authority directed that RE code 3 be assigned.  At the time of the applicant's discharge he was not qualified for continued Army service, but the disqualification was waivable.  Therefore, the assignment of RE-3 is correct.  The applicant is advised that although his RE-3 code was properly assigned, this does not mean that he is totally disqualified from returning to military service.  However, this does not guarantee the applicant will be accepted by any of the services for enlistment.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting a change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

5.  The applicant's accepting of nonjudicial punishment on three occasions for failure to obey a lawful order from an NCO and being drunk and disorderly clearly show the applicant did not meet the standards of acceptable conduct.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Therefore, there is insufficient basis on which to upgrade his discharge.

6.  The applicant's statement of his post-service achievements and conduct was noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly-issued discharge.


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)                                         AR20100010559



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ABCMR Record of Proceedings (cont)                                         AR20100010559



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