IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20130005461 


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 change of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a narrative reason for separation other than "alcohol abuse – rehabilitation failure."

2.  The applicant states item 28 of his DD Form 214 shows "Alcohol Abuse – Rehabilitation Failure."  He believes he was not an alcohol abuser or a rehabilitation failure during his period of service.  He missed two scheduled meetings due to the fact he was doing other duties that he had been delegated to do by his superiors.  The term "alcohol abuse – rehabilitation failure" is not how he would have characterized himself then as an enlisted Soldier.  The term sticks with him no matter how long it has been since his separation.  It has also affected him when he applied for certain jobs as it is reflected on his DD Form 214.

3.  The applicant provides:

	a.  a memorandum issued by B Company, 1st Battalion, 63rd Army, National Training Center, Fort Irwin, CA, subject:  Notification of Proposed Administrative Separation Action Under the Provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9, Paragraph 1, Alcohol or Drug Abuse Rehabilitation Failure, undated.

	b.  two undated 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.  The applicant enlisted in the Regular Army on 2 September 1987 for a period of 4 years.  He completed training and he was awarded military occupational specialty 76Y (unit supply specialist).  He was promoted to pay grade E-4 on
1 October 1988.  He served in Korea from 12 January 1988 through 9 January 1989.

3.  He received the following counseling:

* 11 October 1989 – failure to be at his appointed place of duty and a security violation
* 21 November 1989 – a security violation
* 3 December 1989 – failure to prepare
* 4 December 1989 – being absent from his place of duty
* 23 February 1990 – dereliction of duty
* 24 April 1990 – failure to be at his appointed place of duty
* 14 May 1990 – receiving a speeding ticket

4.  On 6 March 1990, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for operating a vehicle while drunk on 23 February 1990.  His punishment included a suspended reduction to pay grade E-3, and a forfeiture of pay, and 45 days of extra duty.

5.  On 17 April 1990, an administrative hearing decided the suspension of his installation driving privileges would remain in effect.

6.  On 25 April 1990, he was notified of his required completion of a 12-hour Drug and Alcohol Awareness Education Course as part of his treatment in accordance with Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control 

Program (ADAPCP)).  He was also advised he was required to attend and participate in all sessions of the course in order to qualify for satisfactory completion; if any portion of the course was missed, he would be required to repeat the entire course.

7.  On 15 May 1990, the applicant's company commander requested the applicant undergo a psychiatric evaluation.  The company commander stated the applicant's performance was poor and he was refusing to put forth effort.

8.  On 30 May 1990, the applicant's company commander was notified of the applicant's missed ADAPCP appointment.

9.  On 1 June 1990, his punishment of reduction to pay grade E-3 and a forfeiture of pay imposed on 6 March 1990 was vacated.

10.  On 5 June 1990, he accepted NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 29 May 1990.

11.  A memorandum from the Clinical Director, ADAPCP, dated 28 June 1990, summarized the applicant's ADAPCP rehabilitation activities and stated:

	a.  The applicant was referred via Investigation/Apprehension for Driving Under the Influence (DUI) on 23 February 1990.  He waived his rights and refused a breath test.  He was enrolled in Track II on 15 March 1990, and his treatment plan consisted of total drug/alcohol abstinence and weekly counseling sessions.

	b.  The applicant missed two scheduled appointment - on 29 May 1990 at 1000 hours and on 3 April 1990 at 1000 hours.  The applicant was counseled after the first missed appointment that any other appointment not kept would result in the commander declaring the applicant a rehabilitation failure.

	c.  Based on the foregoing, it was apparent that the applicant had not followed the prescribed treatment plan and remained lackadaisical in reference to being enrolled and participating.  Therefore, it was recommended the applicant be declared a rehabilitation failure and that the commander take action as appropriate.  If the applicant leaves the area on a chapter 9 discharge, the ADAPCP services are available until such time.

12.  On 16 June 1990, the applicant's company commander advised the applicant that he was initiating action to separate him under the provisions of 

Army Regulation 635-200, chapter 9, with an honorable or a general discharge.  The company commander stated:

	a.  The reasons for the proposed action were the applicant's failure to make prescheduled appointments, displaying a complacent attitude, and showing no motivation to change.

	b.  The applicant had been enrolled in Track II on 23 February 1990 for a DUI.  At that time, his treatment plan included total abstinence from drugs and alcohol, and attendance at weekly counseling sessions.  The applicant missed two scheduled appointments, on 3 April and 29 May 1990.  This was in direct violation of his treatment plan.

	c.  The applicant had been counseled numerous times regarding deficiencies that had been brought to his attention.  The proposed separation could result in a general discharge which was what he was recommending the applicant receive.  He advised the applicant of his rights.

13.  On 16 June 1990, after consulting with counsel, the applicant acknowledged receipt of the proposed action to separate him under the provisions of Army Regulation 635-200, chapter 9.  He acknowledged he might be issued a general discharge and the results of the issuance of such a discharge.  He waived his rights and elected to submit statements in his own behalf.

14.  In his statements, he stated:

	a.  On 3 April 1990 at 1000 hours he was absent from his drug/alcohol appointment.  On 2 April 1990, he pulled duty as a Staff Duty Noncommissioned Officer (NCO) Runner at the Battalion.  After pulling a full 24-hour duty, he was released on 3 April 1990 at approximately 0800 hours and being totally ignorant to the fact that he needed to still make his appointment, he went to the barracks, laid down, and slept until approximately 1400 hours.  He fully understood that did not justify his actions, but he felt with a little guidance the problem could have been avoided.  His NCO, Sergeant (SGT) N----, was fully aware of his appointment; however, he neglected to inform him that he still needed to make his appointment even though he was off that day.

   b.  On 29 May 1990 at 1000 hours he was absent from his drug/alcohol appointment.  Upon arriving for work call at approximately 0840 hours he was directed by SGT N---- to proceed to Building 94 to conduct supply turn-ins.  From there he proceeded to the Miles Equipment Warehouse to obtain a voucher number for numerous Statements of Charges.  He obtained the voucher number from Miles and proceeded to Finance to process the Statements of Charges.  He arrived back at the office at approximately 1115 hours.

15.  On 21 July 1990, the appropriate separation authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.

16.  On 25 July 1990, he was discharged under the provisions of Army Regulation 635-200, chapter 9, by reason of alcohol abuse – rehabilitation failure, in pay grade E-3, with a General Discharge Certificate.  He completed 2 years, 10 months, and 24 days of creditable active service with no time lost.

17.  The applicant subsequently petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 6 August 1990, after careful consideration and review of his military record and all other available evidence, the ADRB denied his request for change in the character and/or reason of his discharge.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation states in:

   a.  Chapter 9, in effect at the time, a member who had been referred to the Army's ADAPCP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts were no longer practical.  The individual could be issued an honorable or a general discharge.

	b.  Paragraph 3-7a provides that an honorable discharge was a separation with honor.  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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows between October 1989 and May 1990 the applicant was counseled numerous times regarding his deficiencies.  He accepted NJP under Article 15 for a DUI and he was enrolled in the ADAPCP.  He had been warned of the consequences of missing a second ADAPCP appointment.  The Clinical Director, ADAPCP stated it was apparent the applicant had not followed the prescribed treatment plan and remained lackadaisical in reference to being enrolled and participating.  He recommended the applicant be declared a rehabilitation failure and that the commander take action as appropriate.

2.  In July 1990, the applicant's company commander initiated action to eliminate him from the Army under the provisions of Army Regulation 635-200, chapter 9, due to his failure to make prescheduled appointments, displaying a complacent attitude, and showing no motivation to change.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  He was properly separated for alcohol rehabilitation failure and he has submitted neither probative evidence nor a convincing argument in support of his request.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130005461



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ABCMR Record of Proceedings (cont)                                         AR20130005461



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