BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110003485 


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 discharge under honorable conditions to an honorable discharge.

2.  The applicant states he understands the reason for his discharge was related to a new company commander who wanted to make an example within the command.  He now sees this decision as unfair because he was not provided an opportunity to amend.  He was unaware of the impact this would have on his life and he needs to continue with veterans' services and treatment.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 records show he enlisted in the Regular Army on 10 November 1981 and held military occupational specialty 62E (Heavy Construction Equipment Operator).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  His records show he served in Germany from 13 April 1982 to 5 April 1984.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal, Driver and Mechanic Badge, and Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 28 July 1982 for wrongfully damaging/breaking a car window.

5.  On 12 August 1984, he was arrested at Fort Sill, OK, for driving under the influence (DUI) of alcohol.

6.  On 10 September 1984, he was enrolled in the Army Drug and Alcohol Prevention and Control Program (ADAPCP) for alcohol abuse.  He was recommended for Track II treatment and rehabilitation.  He initially attended group counseling; however, he did not show sufficient progress.

7.  On 11 February 1985, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing marijuana residue.

8.  On 12 February 1985, the Fort Sill Community Counseling Center ADAPCP Clinical Director stated the applicant was initially enrolled on 10 September 1984 because of an alcohol-related incident.  He was seen one time in an individual counseling session and eight times in group sessions.  He failed to show up for four scheduled sessions and three command consults were made.  His potential for successful rehabilitation was poor and he was cleared for any administrative action currently pending.

9.  On 25 February 1985, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his demonstrated apathy toward achieving acceptable standards.  He stated the applicant had one prior instance of DUI and he was recently apprehended for drug possession.  He was provided with a copy of the bar, but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by his battalion commander.

10.  On 22 April 1985, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation 635-200 (Personnel Separations) for ADAPCP failure.  The immediate commander cited the specific reason as the applicant's failure to meet the standards of satisfactory progress during his enrollment in the drug and alcohol abuse program.

11.  On 25 April 1985, he acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for ADAPCP failure, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He further indicated he understood he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  Additionally, he submitted a statement wherein he acknowledged his mistakes.

12.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with Army Regulation 
635-200 by reason of ADAPCP rehabilitation failure.

13.  On 26 April 1985, the separation authority approved the applicant's discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed the applicant be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 10 May 1985.

14.  The DD Form 214 he was issued confirms he was discharged by reason of "drug abuse – rehabilitation failure" with a characterization of service of general under honorable conditions.  This form further shows he completed a total of 3 years, 6 months, and 1 day of creditable active military service.

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

16.  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 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.  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 an entry-level status and an uncharacterized description of service is required.

17.  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 evidence of record shows he exhibited a drug or alcohol abuse problem and he was provided with the opportunity to overcome his problem through counseling and referral to and enrollment in the ADAPCP.  However, he showed poor rehabilitation potential.  He was therefore declared an ADAPCP rehabilitation failure and accordingly his immediate commander initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  Based on his record of indiscipline and subsequent ADAPCP rehabilitation failure, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, his service does not warrant 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 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)                                         AR20110003485



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ABCMR Record of Proceedings (cont)                                         AR20110003485



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