IN THE CASE OF:	  

		BOARD DATE:  18 April 2012

		DOCKET NUMBER:  AR20110020631 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that while on active duty and until 8 years ago, he was an alcoholic and addict.  He has since changed his life for the better sober one.  He now has a 10-year old boy and a baby girl.  In his sobriety, he has come to a place where he wants and needs a secure job.  Having a discharge upgrade could help him and his family.  He is truly sorry for his old life, feels ashamed of his old self, and just wants a clean start.

3.  The applicant provides no additional documentary evidence in support of this application.

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 and entered active duty on 16 October 1985.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 91A (Medical Specialist).  The highest rank the applicant attained while serving on active duty was private first class (PFC)/pay grade E-3; however, at the time of separation he held the rank of private (PV2)/pay grade E-2.

3.  The applicant's record contains two DA Forms 2627 (Record of Proceedings Under Article 15 of the UCMJ (Uniform Code for Military Justice)) which show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on two occasions for the following offenses:

* disobeying a lawful order from a commissioned officer on by having alcoholic beverages in the billets
* disobeying a lawful order from a commissioned officer on by having an unauthorized visitor in the billets
* failing to go at the time prescribed to his appointed place of duty on three occasions

4.  A Community Counseling Center, Harvey Barracks, Letter, Subject:  Synopsis of Alcohol and Drug Abuse Prevention and Control Program (ADPCP) Rehabilitation Activities, dated 25 October 1984, was rendered a Behavioral Science Specialist in response to a request for information received from the applicant's company commander.  The Behavioral Science Specialist opined that the applicant's progress in the program had been unsatisfactory and that his potential for successful rehabilitation was poor.  This opinion was based on the fact that the applicant had another alcohol-related incident following his previous enrollment in the ADAPCP.  As a result, the applicant was declared a rehabilitation failure for noncompliance with the requirements of the treatment program. 

5.  On 9 November 1984, the applicant's unit commander notified the applicant of the initiation of separation action against him under the provisions of Chapter 9 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of failure of ADAPCP.  The applicant was advised that this determination had been made in consultation with the rehabilitative team at the local ADAPCP center.  The commander informed the applicant that if the separation action was approved, he would be issued a general discharge under honorable conditions.  The commander informed the applicant that he may submit comments in his own behalf to be considered by the discharge authority along with the commander's recommendations for elimination.  The applicant was also advised that he may request military legal counsel to assist him in preparation of his comments.  In closing, the commander informed the applicant that he must undergo a complete medical examination prior to separation and that he may request treatment in a VA Medical Center.  The applicant acknowledged receipt of this notification on 9 November 1984.

6.  On 9 November 1984, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his aforementioned rights

7.  On 30 November 1984, the separation authority approved the applicant's discharge and directed that he be issued a General Discharge Certificate.  U.S. Army Regional Personnel Service Center, Wuerzburg, Germany, Orders 277-203, dated 3 December 1984, reassigned the applicant to the U.S. Army Transfer Point, Fort Dix, New Jersey, for separation processing with a discharge date of 14 December 1984.

8.  Accordingly, the applicant was discharged under the provisions of Chapter 9 of Army Regulation 635-200 by reason of drug abuse rehabilitation failure.  This form also shows that he received an under honorable conditions characterization of service.  He was separated on 14 December 1984 and was credited with completing 1 year, 7 months, and 19 days of active duty service.

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

10.  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.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's post-service accomplishments are noteworthy; however, the applicant, by violating the Army's policy not to abuse alcohol and illegal drugs, compromised the special trust and confidence placed in him as a Soldier.  The applicant had the duty to support and abide by the Army's alcohol and drug abuse policies.  By abusing alcohol and drugs, the applicant knowingly risked his military career.

3.  The available evidence shows the command attempted to assist the applicant by providing him alcohol/drug counseling and by the imposition of NJP.  The applicant was enrolled in the ADAPCP and he was aware of the consequences of any action which would demonstrate an inability or refusal to participate in, cooperate in, or successfully complete the program.  The applicant failed to respond appropriately to these efforts.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  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.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.

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)                                         AR20110020631





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ABCMR Record of Proceedings (cont)                                         AR20110020631



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