IN THE CASE OF:	  

		BOARD DATE:	    21 October 2010

		DOCKET NUMBER:  AR20100012164 


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.  He states he wants to have an honorable discharge instead of a Chapter 9 so his record looks good.

3.  He provides copies of the following:

* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* His Addictive Disorders Treatment Program Certificate of Graduation
* A completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 records show he enlisted in the Regular Army, in pay grade E-1, on 17 April 1979.  He completed training and was awarded military occupational specialty 13B (Cannon Crewman).  He served in Turkey from 19 January 1981 through 15 January 1982.  He was promoted to pay grade E-5 on 4 August 1982.  

3.  He was honorably released from active duty on 15 December 1982 for the purpose of immediate reenlistment.  He reenlisted on 16 December 1982 for 3 years.  He was again honorably released from active duty on 24 January 1985 for the purpose of immediate reenlistment.  He reenlisted on 25 January 1985 for 6 years.  

4.  On 25 August 1985, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being derelict in the performance of his duties on 10 July 1985.  

5.  On 21 February 1986, he was punished under Article 15, UCMJ, for being drunk while on duty and being drunk and disorderly on 31 December 1985.  His punishment included reduction to pay grade E-4.

6.  He served in Germany from 9 April 1985 through 8 April 1988.

7.  On 18 July 1986, he was punished under Article 15, UCMJ, for operating a passenger car while drunk and wrongfully failing to properly register his vehicle on 5 July 1986.  His punishment included reduction to pay grade E-3.  

8.  On 25 July 1986, the Clinical Director, Department of the Army, Baumholder Community Counseling Center, provided the applicant's command with a synopsis of the applicant's rehabilitation activities.  The Director stated the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 25 July 1986, subsequent to his apprehension by the military police for driving while intoxicated.  He was enrolled in Track II rehabilitation and immediately declared a rehabilitation failure due to the following reasons:  his prior ADAPCP enrollment from 8 May 1986 to 1 July 1986 for a drunk on duty incident; his inability to adapt the knowledge gained in ADAPCP to his use of alcohol; his subsequent alcohol-related incident after completion of the rehabilitation program; and due to the continued alcohol-related incidents, the applicant's potential for successful rehabilitation was poor.   

9.  On 31 July 1986, the applicant's company commander advised the applicant that he was initiating his separation pursuant to the provisions of chapter 9, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for his continued abuse of alcohol and rehabilitation failure.  

10.  On 4 August 1986, after consulting with counsel, he acknowledged receipt of the proposed action to separate him under the provisions of Army Regulation 635-200, chapter 9, for abuse of alcohol.  He acknowledged he could be issued a general discharge under honorable conditions and the results of the issuance of such a discharge.  He waived his rights to have his case heard by an administrative separation board and elected not to submit a statement in his own behalf.

11.  On 6 August 1986, the applicant's company commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 9, prior to his expiration of term of service.  

12.  On 8 August 1986, the appropriate separation authority approved his discharge and directed the issuance of a General Discharge Certificate.  

13.  He was discharged in pay grade E-3 on 3 September 1986, under the provisions of Army Regulation 635-200, chapter 9, by reason of alcohol abuse - rehabilitation failure, with a general, under honorable conditions discharge.  He was credited with 7 years, 4 months, and 17 days of net active service.

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

15.  He provided a copy of his Addictive Disorders Treatment Program Certificate of Graduation issued on 19 February 2009 for his successful completion of the program.

16.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 9 contained the authority and outlined the procedures for discharging individuals because of alcohol or other drug abuse.  A member who had been referred to the Army's ADAPCP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts were no longer practical.  The individual could be issued an honorable or general, under honorable conditions discharge.

17.  Army Regulation 635-200, paragraph 3-7a, also specified an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was punished under Article 15 in February 1986 for being drunk on duty and reduced from pay grade E-5 to E-4.  On 18 July 1986, he was punished under Article 15 for operating a vehicle and reduced from pay grade E-4 to E-3.  He was subsequently enrolled in the ADAPCP and was immediately declared a rehabilitation failure based on his prior ADAPCP enrollment from 8 May 1986 to 1 July 1986, inability to adapt to the knowledge gained to his use of alcohol, subsequent alcohol-related incident after completing the rehabilitation program, and continued alcohol-related incidents causing a poor successful rehabilitation. 

2.  He was discharged on 3 September 1986 under the provisions of Army Regulation 635-200, chapter 9, as an alcohol rehabilitation failure.  His contention is acknowledged; however, he was properly separated for rehabilitation failure and he has submitted neither probative evidence nor a convincing argument in support of his request.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge.  Therefore, there is no basis for granting his 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.



      _______ _   __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)                                         AR20100012164





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ABCMR Record of Proceedings (cont)                                         AR20100012164



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