BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140008571 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was discharged for failing to complete alcohol rehabilitation.  He has since completed rehabilitation.  He is planning to return to school and is currently living at the Shepherd's House, a transitional living program for veterans.  He should have the right to college funds.  The Department of Veterans Affairs (VA) has his financial aid application.  He served 2 years, 10 months, and 20 days of his 3-year obligation.  He was in a crisis of divorce and his child was taken by her mother back to the United States while he had to remain in Germany.  It was a tough time. 

3.  The applicant provides a letter attesting to his completion of a rehabilitation program and a verification of residency letter.

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.  On 12 June 1992, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 63B (Light Wheeled Vehicle Mechanic).  The highest rank he attained was specialist/pay grade E-4.

3.  He received counseling for suspected driving under the influence of alcohol on or about 15 October 1994.

4.  On 15 November 1994, he was issued a General Officer Memorandum of Reprimand (GOMOR) for driving his privately-owned vehicle while drunk on 15 October 1994.  The GOMOR was imposed as an administrative measure and not as punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  He acknowledged he had read a copy of the GOMOR and chose not to submit a rebuttal.

5.  On 17 November 1994, he received nonjudicial punishment (NJP) for operating a passenger car while drunk on or about 15 October 1994.

6.  On 25 January 1995, the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Clinical Director provided a synopsis of his rehabilitation activities.  The applicant was enrolled in the ADAPCP out-patient program on   17 November 1994 as a command referral for alcohol.  During the initial enrollment, he was informed verbally and in writing of the ADAPCP program expectations, which included a commitment to abstinence from alcohol during the course of treatment.  He participated in six group counseling sessions and two individual counseling sessions; however, his progress and prognosis were poor.

7.  On 21 February 1995, his company commander formally notified him of the initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9, for unsatisfactory performance and that he was recommending an honorable discharge.  The reasons for his commander's proposed action were: drunken driving, being flagged, receiving a GOMOR, receiving NJP, failing to pay debt, and making poor progress in ADAPCP rehabilitation.  On 24 February 1995, he acknowledged receipt of the notification of initiation of action to separate him.

8.  On 14 March 1995, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him for alcohol or other drug abuse rehabilitation failure under the provisions of Army Regulation 635-200, chapter 9, and the effect of any action taken by him in waiving his rights.  He chose not to submit a statement in his own behalf.

9.  On 22 March 1995, the applicant's company commander recommended the applicant's discharge under the provisions of Army Regulation 635-200, chapter 9.  He recommended the applicant be given an honorable discharge.

10.  On 24 March 1995, the separation authority approved the recommendation to discharge the applicant and directed that he be given a general discharge.  He was discharged on 1 May 1995.

11.  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.

12.  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 the ADAPCP for alcohol 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 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's contentions were noted.  The available evidence does not support his request for an upgrade of his general discharge to an honorable discharge.

2.  The record shows he was discharged as an alcohol rehabilitation failure, primarily because both his progress and prognosis were poor.  Also, his duty performance was unsatisfactory and he had failed to pay a debt.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.  

3.  Once he had been placed in the ADAPCP, he was obligated to meet program requirements.  His failure to do so constituted a failure to meet the standards of acceptable conduct and performance of duty for Army personnel, which warranted a general discharge.  There is no evidence of mitigating factors that would support changing that decision now.

4.  Records are not normally corrected solely for the purpose of establishing eligibility for other programs or benefits.  

5.  In view of the foregoing, there is an insufficient basis upon which to grant the 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)                                         AR20140008571



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ABCMR Record of Proceedings (cont)                                         AR20140008571



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