IN THE CASE OF:
BOARD DATE: 30 November 2010
DOCKET NUMBER: AR20100013783
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 discharge be changed from general to honorable.
2. The applicant states he was given a general discharge due to a single incident. He was walking back to base with another Soldier when the other Soldier urinated on the sidewalk. This resulted in both of them being arrested for public intoxication. He adds that "I had not had any other incidents during my military career."
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three letters of support.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 30 November 1978, was awarded the military occupational specialty of infantryman, and was promoted to the rank of corporal.
3. On 12 September 1979, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty (guard mount in Germany) and, as a result of previous indulgence in intoxicating liquor, being incapacitated for the proper performance of his duties.
4. On 2 July 1982, the applicant was declared a rehabilitation failure. It was stated that the applicant had been admitted into the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 25 February 1982.
5. On 6 August 1982, the applicant was advised by his commander that he was recommending his discharge due to his being a rehabilitation failure and of his rights in conjunction with that recommendation. The applicant waived his rights.
6. On 13 August 1982, the applicant's commander forwarded his recommendation to discharge the applicant for rehabilitation failure. In that recommendation his commander stated that the applicant refused to cooperate with personnel at the drug and alcohol rehabilitation center and, while on deployment in Arkansas, the applicant was picked up off post for public drunkenness.
7. The commander's recommendation was approved by the appropriate authority. Accordingly, on 30 August 1982 the applicant was given a general discharge due to alcohol or other drug abuse rehabilitation failure under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 9.
8. 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 Soldiers because of alcohol or other drug abuse. A member who has been referred to the 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. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required.
DISCUSSION AND CONCLUSIONS:
1. Contrary to the applicant's contention that he had no other blemish on his record other than a public intoxication charge, he accepted NJP for failure to go at the time prescribed and inability to perform his duties due to intoxication in Germany and was picked up for public drunkenness in Arkansas.
2. In addition, the applicant was discharged due to his refusal to cooperate with personnel at the drug and alcohol rehabilitation center, not for public intoxication.
3. While the letters provided in the applicant's behalf show he is now an upstanding citizen today, this is insufficient to warrant upgrading a properly issued discharge.
4. In view of the foregoing, there is no basis for granting the applicants 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) AR20100013783
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ABCMR Record of Proceedings (cont) AR20100013783
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