IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110024567 


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 to an honorable discharge, his narrative reason for separation changed to medical or something other than alcohol abuse-rehabilitation failure, and correction of item 15b (High School Graduate or Equivalent) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show "yes." 

2.  He states that although it is not a reason, he was 18 years old and married at the time he was in Germany.

   a.  He started drinking due to marriage problems and being unwise.  His wife was not happy and it took its toll.  He has not consumed alcohol since 1991 and has been employed by the Iowa Department of Corrections as an officer for the last 15 years.  He has worked hard to move beyond his past.
   
   b.  He states he received his General Educational Development (GED) while he was in the Army.

3.  He provides no additional documentary evidence.

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.  His military records show he enlisted in the Regular Army on 10 May 1989 at the age of 18.  He was awarded the military occupational specialty of 94B (Food Service Specialist).  The highest rank/grade he held was private first class/E-3.

3.  On 13 June 1990, he was counseled regarding his desire for a military discharge or separation due to his inability to adapt to his military surroundings and missions given.  He indicated he was stressed out and wanted an immediate discharge.  He indicated he did not desire counseling or assistance with his problems.

4.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 11 September 1990, indicated he was evaluated in conjunction with his proposed discharge.  The examiner determined the applicant had the mental capacity to understand and participate in separation proceedings.  The examiner further stated the applicant was a Chapter 9 alcohol rehabilitation failure.
  
5.  A Vilseck Community Counseling Center memorandum, subject: Synopsis of Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Rehabilitation Activities, dated 16 July 1990, shows he was a medical referral following an alcohol-related incident on 12 February 1990.  The command enrolled him in Track II on 30 March 1990.  He participated in one screening interview, 12 hours of Awareness Education, and three group counseling sessions.

   a.  Treatment had been marked by the applicant's verbal acceptance of a severe alcohol problem coupled with continued daily drinking, usually to intoxication.  His history showed involvement with several violent alcohol-related incidents and inpatient treatment for alcoholism with an apparent lack of success.  He clearly stated that he would not alter his drinking at that time.
   
   b.  It was the opinion of the treatment staff that the applicant would become a further disciplinary problem and given his past history and current drinking levels, they may present danger to him and others.  Potential for successful rehabilitation was poor.	

6.  The applicant's commander notified him that he was initiating action to separate him from the service under the provisions of chapter 9 of Army Regulation 635-200 (Personnel Separations).  He stated the reason for his proposed action was the applicant's failure in the ADAPCP Rehabilitation.  On 12 February 1990, he had been involved in an alcohol-related incident.  He was evaluated and enrolled in Track II on 30 March 1990 for this alcohol-related incident.  He had failed to respond to any of the treatment and the potential for rehabilitation was poor.  The commander stated he was recommending the applicant be given a general discharge.  On 27 July 1990, the applicant acknowledged receipt of the notification of initiation of the separation action under the provisions of Chapter 9, Army Regulation 635-200.

7.  The commander advised the applicant of his right:

* to consult with counsel
* to submit statements in his own behalf
* to obtain copies of documents that would be sent to the separation authority
* to waive the above rights in writing

8.  He acknowledged that he had been advised by counsel of the basis for the contemplated action to separate him for failure in the ADAPCP Rehabilitation, Chapter 9, Army Regulation 635-200, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He chose not to submit a statement in his own behalf for consideration.  He waived his rights in conjunction with this consultation.

9.  The appropriate authority approved the recommendation for discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed that the applicant be furnished a General Discharge Certificate.

10.  On 15 October 1990, he was given a general discharge under the provisions of chapter 9 of Army Regulation 635-200 due to alcohol abuse - rehabilitation failure.  He had completed 1 year, 5 months, and 6 days of active service.

11.  His DA Form 2-1 (Personnel Qualification Record), authenticated by his signature, shows he completed 11 years of schooling.

12.  His DA Form 2A (Personnel Qualification Record, Part I) shows he completed 2 years of high school.  

13.  His DD Form 214 shows he was not a high school graduate or equivalent at the time of his discharge.
14.  His records contain no evidence to show he suffered from a disabling condition at any time during his active duty tenure that would have warranted his separation processing through medical channels.

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, in effect at the time, contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse rehabilitation failure.  A member who had 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.  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, stated 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.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.



2.  He was determined to be an alcohol-rehabilitation failure.  He was properly and equitably discharged in accordance with regulations in effect at the time.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  By regulation, a Soldier must be unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing for a medical discharge through the Army PDES.  The evidence of record provides no indication he suffered from a physically or mentally disqualifying condition that would have supported his separation processing through the Army PDES at the time of his separation.  

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on the processing procedures for separation and specific guidance in determining the character of service and description of separation.  There is no evidence of error in his assigned reason for separation.  As such, there is no basis to change his reason for separation.

5.  There is no evidence in his records and he has not provided any evidence he was a high school graduate or had earned a GED diploma prior to his discharge from the Army.  As such, he is not entitled to have item 15b changed from "no" to "yes."

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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)                                         AR20110024567



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ABCMR Record of Proceedings (cont)                                         AR20110024567



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