IN THE CASE OF:	  

		BOARD DATE:  17 July 2012

		DOCKET NUMBER:  AR20110025129 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he was told by his commanding officer his discharge would be automatically upgraded in 6 months.

3.  The applicant provides self-authored statements.

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.  After having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 25 February 1987.  He completed training and was awarded military occupational specialty 27E (Tow/Dragon Repairer).
3.  A DA Form 4856 (General Counseling Form), dated 16 July 1987, shows the following:

* the applicant failed to show up for work in a 24-hour period from 15 to 
16 July 1987 
* being absent without leave (AWOL) was explained to him
* he was seen drinking and driving a car
* he was in the A&D Program (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP))
* this was his second incident in less than a month for having an alcohol related incident

4.  A DA Form 4856, dated 17 July 1987, shows the applicant missed three formations.

5.  A DA Form 4856-R (General Counseling Form), dated 20 July 1987, shows the applicant was counseled on the following:

* he would not consume alcoholic beverages while in the ADAPCP or partake of any illegal drugs
* he would attend TRACK I during the period 27 and 28 July 1987
* he would begin TRACK II as soon as a schedule was provided and the sessions would be twice a month
* the Army was doing him a favor by allowing him to remain on active duty
* he would find himself discharged if he did not abstain from alcohol and his performance of duty and appearance did not improve

6.  Evidence of record shows the applicant received nonjudical punishment (NJP)  under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 28 July 1987 for being AWOL on 15 July 1987
* 20 August 1987, vacation of a suspended reduction
* 9 September 1987 for failure to go to his appointed place of duty on 
17 August 1987

7.  On 24 September 1987, his commander initiated proceedings to bar him from reenlistment in the military service.  In support of his recommendation, his commander noted his NJP under the provisions of Article 15 of the UCMJ, conduct and performance, and ADAPCP efforts.  The applicant signed a statement indicating he had read and understood the allegations and the action his commander intended to take against him.  He elected not to make a statement.

8.  On 27 December 1987, the applicant was apprehended for driving while intoxicated (DWI).  He refused to take or complete a lawfully requested chemical test for blood alcohol content.  His driving privilege to operate a privately owned motor vehicle on the installation was revoked for a 12-month period.

9.  On 5 January 1988, the applicant received a letter of reprimand for his DWI and refusal to submit to a blood alcohol test.  He elected not to provide statements in his own behalf.

10.  On 8 January 1988, the installation alcohol and drug control officer provided the applicant's commander with a summary of the applicant's ADAPCP rehabilitation efforts.  The summary, in pertinent part, stated the following:

* he had not made satisfactory progress towards rehabilitation and was declared a rehabilitation failure
* discharge should be effected
* he failed to comply with treatment plans and goals and was not eligible for transfer to the Veterans Administration as part of the separation proceedings

11.  On 25 January 1988, his commander informed him of the initiation of proceedings to discharge him under the provisions Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9, for alcohol or other drug abuse rehabilitation failure.  He was advised of his right to submit statements on his own behalf, to be represented by counsel, and to waive the aforementioned rights.

12.  On 25 January 1988, the applicant acknowledged he had been advised by counsel of the basis for contemplated action to accomplish his separation for alcohol or other drug abuse rehabilitation failure.  He indicated he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further indicated he understood that issuance of an under other than honorable conditions discharge would make him ineligible for many or all benefits as a veteran under Federal and State laws.

13.  The applicant provided the following statements for the commander's consideration:

* in the past 3 years he had never been in trouble 
* he received 2 honorable discharges from the Oregon and Washington Army National Guard
* he had been the best worker he could be and always completed any task ever assigned
* he ran into some bad luck and made his own road
* when he drank alcohol influenced his judgment 

14.  On 6 February 1988, the separation authority approved the applicant's discharge for alcohol or other drug abuse rehabilitation failure under the provisions of Army Regulation 635-200 and directed he receive a General Discharge Certificate.  

15.  On 25 February 1988, he was discharged accordingly.  He completed 11 months and 16 days of total active service.

16.  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.

17.  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.

18.  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 applicant's request for an upgrade of his general under honorable conditions discharge was carefully considered and determined to lack merit.

2.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service and/or the reason for discharge were improper or inequitable.  

3.  Based on his record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general discharge to 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 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)                                         AR20110025129



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ABCMR Record of Proceedings (cont)                                         AR20110025129



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