IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017619 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states, in effect, that at the time of his service he never was enrolled in any treatment program for his alcohol abuse.  He states he accepts full responsibility for his actions because he turned to alcohol after he found his wife with another man.  Since his discharge, he has completed the degree requirements for a Bachelor of Science and a Master of Business Administration.  He concludes by stating he has been employed for over 10 years and he co-authored a book which is identified as a major source of study for network-specific technical certification.  

3.  The applicant provides copies of his degree diplomas.

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 17 September 1980.  He was discharged from the USAR DEP on 12 November 1980 and he enlisted in the Regular Army on 13 November 1980 for a 3-year period of service.  He completed his initial entry training and he was awarded military occupational specialty 68J (Aircraft Armament and Missile Systems Repairer).

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for operating a vehicle while drunk, on 11 June 1983 and on 7 August 1983.  In addition, he operated a privately owned vehicle without a proper driver’s license on 7 August 1983.

4.  Based on the first alcohol-related incident, the applicant’s commander referred him to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) where he was screened by the drug and alcohol rehabilitation team.  The team's recommendation was enrollment in Track II of the ADAPCP and he entered this program.

5.  On 20 October 1983, he received a mental status evaluation.  The examiner determined he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he 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.

6.  On 14 November 1983, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 9, for demonstrating a serious lack of judgment and unsatisfactory military performance based on two incidents of drunk driving and operating a privately owned vehicle without a license.  His commander stated his conduct was incompatible with military service and that he demonstrated an unsuitable attitude.

7.  The commander advised him of his right to submit statements in his own behalf, to obtain copies of all documents used in the preparation of his separation 


packet, and to consult with and be represented by military counsel or civilian counsel (at his personal expense).  He was also advised he could waive any of these rights within seven days of notification and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.

8.  In a letter, dated 17 November 1983, the clinical director stated the applicant was enrolled in Track II of ADAPCP and attended his initial orientation on 15 July 1983.  While enrolled in ADAPCP, he received a second driving while intoxicated charge and he was warned about the effects of his continued abuse of alcohol.  He remained in rehabilitation and he attended the required education classes and three group-counseling sessions.  The clinical director stated the applicant was actively involved in the group discussions and exercises.  However, it was noted the applicant had not abstained from drinking alcohol nor had he attended Alcoholic Anonymous (AA) meetings as part of his recommended rehabilitation process.  The clinical director stated the applicant had shown progress during treatment and that he had accepted responsibility for his actions.  He concluded by stating:

It would be fair to state that his (the applicant’s) prognosis is guarded in view of his continued drinking and lack of participation in AA.

9.  In an undated statement, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse.  The applicant acknowledged that he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He requested and he was provided counsel prior to waiving his rights.  Records show that he did submit a statement in his own behalf.  However, he did not request treatment at a Veterans Administration medical center or a separation physical.   

10.  On 14 December 1983, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 9 and directed the issuance of a General Discharge Certificate.

11.  On 20 January 1984, the applicant was discharged under the provisions of Army Regulation 635-200. chapter 9, due to alcohol rehabilitation failure.  He had completed 3 years, 2 months, and 8 days of total active service that was characterized as under honorable conditions.


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

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 Soldiers because of alcohol or other drug abuse.  A member who has been referred to the ADAPCP for alcohol 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, states 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 he was never enrolled in a treatment program for his alcohol abuse.  However, the evidence of record does not support his statement.  The evidence does show he was enrolled in an Army sponsored alcohol treatment program, ADAPCP, after his first alcohol-related incident.  His progress within this program was described as guarded due to his failure to abstain from alcohol or enroll and attend required AA meetings.  Therefore, separation action was initiated due to his lack of compliance with the ADAPCP treatment program that included a second driving while intoxicated incident.

2.  He was properly and equitably discharged in accordance with regulations in effect at the time for alcohol rehabilitation failure.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of this case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  In view of the foregoing, there is insufficient basis to grant the applicant's 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)                                         AR20100017619



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ABCMR Record of Proceedings (cont)                                         AR20100017619



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