IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100011907 


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

2.  The applicant states, in effect, that he has been homeless for the past 8 years.  The applicant further states that his discharge has prevented him from gaining employment and education benefits.  He has not been in any trouble since his discharge and his discharge is a disgrace to his family name.  The applicant states that his discharge has ripped his heart out and now his health is in major decline and he cannot get assistance from the Department of Veterans Affairs due to his discharge.  The applicant concludes that he has not touched a drop of alcohol in 10 years since his discharge.

3.  The applicant provides no additional documentation in support of this case.

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 15 May 1996.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).

3.  The applicant's record reveals a disciplinary history that includes general counseling statements on the following dates:

* 6 December 1999 for traveling outside of the 150-mile radius without a pass
* 6 December 1999 for driving under the influence (DUI), for disobeying a lawful order, and for conduct unbecoming of a noncommissioned officer
* 20 January 2000 for wrongfully using marijuana
* 22 February 2000 for DUI, for failure to give aid, for conduct unbecoming of a Soldier, and for confinement by civilian authorities

4.  On 10 March 2000, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana.

5.  A DA Form 8003 (Alcohol and Drug Abuse and Control Program (ADAPCP) Enrollment), dated 21 March 2000, shows the applicant was enrolled in the ADAPCP on 21 March 2000 for the January 2000 arrest for DUI and the March 2000 Article 15 for improper use of drugs.

6.  The applicant's ADAPCP Clinical Director advised the applicant's company commander by memorandum, dated 10 April 2000, that the applicant stated he did not want treatment through the agency.  The applicant further stated he did not intend to stop using alcohol.  The ADAPCP Clinical Director stated that because the applicant refused treatment, he was being returned to his unit for administrative action.

7.  On 28 September 2000, the applicant was notified by his company commander that he was initiating action to separate the applicant under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 9, for alcohol or other drug abuse rehabilitation failure.  The reason cited by the commander was the applicant's refusal of treatment in the ADAPCP.

8.  The applicant was further advised that he was being recommended for a general under honorable conditions discharge with the reason for discharge as alcohol abuse rehabilitation failure.  He was also advised that this action was suspended for 7 days to give him the opportunity to "request appointment of military counsel, submit a statement on his behalf, or to waive the foregoing rights in writing or by declining to reply within 7 days."

9.  On 19 May 2000, the applicant acknowledged that he was advised of the basis for his separation under the provisions of Army Regulation 635-200.  The applicant waived his right to seek counsel and indicated that he did not provide statements on his own behalf.

10.  On 9 June 2000, the applicant was discharged under the provisions of chapter 9, Army Regulation 635-200, for alcohol abuse-rehabilitation failure.  The applicant was issued a general under honorable conditions discharge.  He completed a total of 3 years, 11 months, and 25 days of creditable active service at the time of separation with no lost time.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 25 April 2001, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's reason for discharge was proper and equitable and that the discharge was properly characterized.

12.  Chapter 5 of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program) states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander, in consultation with the ADAPCP staff, determines that further rehabilitation efforts are not practical and that rehabilitation is a failure.

13.  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 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.

14.  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 contends that his discharge has prevented him from gaining employment and education benefits.  However, the ABCMR does not grant relief solely for gaining employment and education benefits.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  It is commendable that the applicant has not touched a drop of alcohol in 10 years.  However, a review of his record of service shows he received a general under honorable conditions discharge for alcohol abuse rehabilitation failure.  He had numerous other incidents of alcohol/drug-related misconduct.  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 honorable 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)                                         AR20100011907



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ABCMR Record of Proceedings (cont)                                         AR20100011907



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