BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120004833 


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.

2.  The applicant states, in effect, he never had any problems during his service in the Navy or the Army.  His service was considered outstanding until his daughter was injured by a hit and run driver and almost died.  After the incident it was very difficult for him.  He did not know how to deal with his feelings or the stress.  It took many years and various medical treatments, but she finally got better.  

3.  The applicant provides no additional 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.  After having had previous enlisted service, the applicant enlisted in the Regular Army on 30 April 1980 and held military occupational specialty (MOS) 16J (Defense Acquisition Radar Operator) and MOS 63B (Light Wheel Vehicle Mechanic).  His last duty assignment was with Headquarters and Headquarters Battery, 5th Battalion, 62nd Air Defense Artillery, 11th Air Defense Brigade, Fort Bliss, TX, and the highest rank/grade he attained while serving on active duty was staff sergeant/E-6.

3.  His record contains a military police report, dated 27 November 1986, which shows he was stopped for erratic driving, at 0015 hours, at Fort Bliss, TX, when entering the Forrest West gate.  The gate guard detected an odor of alcohol about him and he failed the sobriety test.  He submitted to a breath test which showed he had a breath alcohol content of .24 percent and he had no driver's license in his possession.  He was released to his first sergeant (1SG) and declined to say where he had been drinking.  This report shows he was previously arrested off post, on 19 April 1986, for public intoxication.

4.  His record contains an administrative letter of reprimand, dated 4 December 1986.  He was reprimanded for misconduct.  Specifically, on 27 November 1986, he was apprehended at Fort Bliss for drunk driving.  A chemical test revealed that his blood alcohol content was .24 percent, in violation of Army Regulations and Texas law.

5.  On 5 December 1986, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for operating a vehicle while intoxicated, on 27 November 1986.

6.  His record contains a letter, dated 19 December 1986, from the Clinical Director of Ward 40, William Beaumont Army Medical Center, El Paso, TX.  The director, also a clinical psychologist, stated:

	a.  The applicant completed an evaluation and education program from 
15 December to 19 December 1986.  During this period he participated in a psychological evaluation, physical training, group counseling, Alcoholics Anonymous, alcohol education, and driver's safety education.

	b.  His participation was considered fair.  If no treatment was given, his prognosis for refraining from abusing alcohol in the future was determined to be poor.  This recommendation is based on information including blood alcohol content at the time of referral, his command’s appraisal, reports concerning any alcohol abuse indications, psychological testing, interviews, observation, and other relevant data.

	c.  A diagnosis of alcohol abuse was made.  This diagnosis implied that social drinking may be possible but it was not advisable.  The possibilities of recurrent difficulties with continued alcohol use remained.

	d.  It was recommended that he return to duty, followed by a referral to the Fort Bliss Community Counseling Center (CCC) for Track II.  It was strongly recommend that he complete one full year of outpatient counseling with a strong recommendation for daily supervised anti-abuse and Alcoholics Anonymous attendance and consideration for Track III referral or separation if any alcohol incidents occur in the future.  He did not currently accept the need for substance abuse counseling; therefore, the recommendation was that the rehabilitation team, his commander, CCC counselor, and the applicant should confer to assess the value of counseling if the applicant was not going to actively participate in the near future.

7.  His record contains a memorandum, dated 19 December 1986, from the Director of Personnel and Community Activities to the Commander of Headquarters and Headquarters Battery, 5th Battalion, 62nd Air Defense Artillery.  This letter directed the commander or an authorized representative to contact the CCC no later than 26 December 1986 to ensure the applicant was enrolled in the appropriate treatment programs as recommended by the Clinical Director of Ward 40, William Beaumont Army Medical Center.

8.  His record contains a military police report, dated 23 December 1986, which states he was arrested for public intoxication off post at 0600 hours, in El Paso, TX.  A police officer from the El Paso Police Department (PD) found him lying in a puddle of rain water.  He had an odor of alcohol about him, slurred speech, and unsteady balance.  He insisted on driving home.  He was arrested for his own protection, confined in the county jail, and a bond of $40.00 was set.

9.  His record contains a recommendation for the filing of his administrative letter of reprimand, dated 29 December 1986, wherein his commander recommended the letter of reprimand be filed in his Official Military Personnel File.  The recommendation further stated:

	a.  He had three alcohol-related offenses while under this command, one was for driving while intoxicated, and two were for public intoxication.  His last public intoxication occurred on 23 December 1986, 4 days after he completed Ward 40 (Alcohol Evaluation and Education Program).  This clearly showed his lack of self-discipline, maturity and judgment.

	b.  He was diagnosed as an alcohol abuser with the possibility of being an alcoholic.  He was enrolled in the Track II program and his command intended to monitor his job performance.

10.  In a memorandum, dated 13 January 1987, his commander informed him that his privilege to drive a privately-owned vehicle on Fort Bliss was revoked, effective immediately, for a period of 1 year, from 4 December 1986 to 
3 December 1987.  He acknowledged receipt of this order, in writing, on 
22 January 1987.

11.  His record contains a military police report, dated 4 February 1987, which states he was arrested for public intoxication off post at 2210 hours, in El Paso, TX, at the Solid Gold Bar.  During a routine bar check a waitress informed the El Paso PD that the applicant was intoxicated and creating a disturbance.  He had difficulty maintaining balance.  He was confined in the county jail and a bond of $40.00 was set.  He posted bond and was subsequently released.

12.  The Director, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), sent a letter to the applicant's commander stating the applicant, while in Track II, missed his appointment on 12 February 1987.  The Director went on to state the ADAPCP staff considered him to be a rehabilitation failure due to the public intoxication incident which occurred on 4 February 1987.

13.  On 20 March 1987, his 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 – Enlisted Personnel), for ADAPCP failure.  His commander cited the reason for this recommendation was his rehabilitative failure.

14.  On 20 March 1987, he acknowledged receipt of the commander's intent to separate him and he was advised of the basis for the contemplated separation action 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 that were available to him.  He acknowledged that he understood could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He elected to submit a statement on his own behalf; however, his statement is not contained within his available records.

15.  On 15 April 1987, the separation authority approved his discharge action under the provisions of chapter 9 of Army Regulation 635-200 and directed that he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 30 April 1987.  

16.  His DD Form 214 confirms he was discharged in the rank grade of sergeant/E-5 by reason of "Alcohol Abuse Rehabilitation Failure" with a characterization of service of under honorable conditions.  This form further confirms he completed a total of 7 years and 1 day of net active service during this period of enlistment.  

17.  There is no indication he applied to the Army Discharge Review Board for an upgrade of discharge within that board's 15-year statute of limitations. 

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 

   a.  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. 

	b.  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 was discharged under the provisions of chapter 9 of Army Regulation 635-200, by reason of alcohol abuse rehabilitation failure, and issued a general discharge.  

2.  The evidence of record shows he was arrested several times for driving while intoxicated and public intoxication.  Based on his record of indiscipline his service clearly does 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.

 
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)                                         AR20120004833



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ABCMR Record of Proceedings (cont)                                         AR20120004833



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