IN THE CASE OF: BOARD DATE: 1 September 2011 DOCKET NUMBER: AR20110003107 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 his general discharge be upgraded to an honorable discharge. 2. The applicant states he served for more than 7 years of active service; performed most, if not all, of his duties; and wanted to make a career of the U.S. Army. 3. The applicant provides no additional evidence in support of his application. 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 completed 3 years of honorable service in the Regular Army (RA) on 12 August 1984. He again enlisted in the RA on 2 April 1987 and reenlisted on 13 December 1989. He held the military occupational specialty of petroleum supply specialist. The highest rank/grade he attained was specialist four/E-4. 3. He accepted nonjudicial punishment (NJP) for wrongfully having a blood alcohol level above .05 percent while on duty on 6 May 1991 and for failing to go at the time prescribed to his appointed place of duty on that same date. 4. His records contain a letter from an acting Alcohol and Drug Control Officer, dated 6 September 1991, addressed to the applicant's commander in response to the commander's request for information pertaining to the rehabilitation activities of the applicant. The Alcohol and Drug Control Officer stated the applicant was referred to the Berlin Counseling Center on 14 May 1991 as a command-referral for being drunk on duty. The Alcohol and Drug Control Officer stated the applicant's prognosis was unfavorable in light of a recent incident. 5. On 7 October 1991, the applicant's commander notified the applicant that he was recommending discharge under the provisions of chapter 9 of Army Regulation 635-200 (Personnel Separations) for being deemed an alcohol rehabilitation failure. He stated the reasons for his proposed action were that since the applicant's release from the Army Drug and Alcohol Prevention and Control Program (ADAPCP) he had continued to abuse alcohol. He further stated the applicant's abuse of alcohol had severely hindered his ability to perform his duties. The commander stated he was recommending that the applicant be given a general discharge. 6. The commander advised the applicant of his rights to include the right to: * consult with counsel * submit statements in his own behalf * obtain copies of documents that would be sent to the separation authority * have his case heard by an administrative board * waive the above rights in writing 7. On 8 October 1991, the applicant acknowledged he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 9 of Army Regulation 635-200 for ADAPCP rehabilitation failure and its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He requested a personal appearance before an administrative separation board which he later waived. 8. He submitted a statement in his own behalf for consideration. However, the statement is not available for review. 9. The applicant's commander stated the applicant was being recommended for separation for alcohol rehabilitation failure prior to his expiration term of service. He stated the applicant failed to go to his appointed place of duty on 4 September 1991 which resulted in his being taken to the hospital for a blood alcohol test. This was after the applicant had been referred to the Berlin Counseling Center and enrolled in Track III on 16 May 1991. 10. 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. 11. On 5 November 1991, he was given a general discharge under the provisions of chapter 9 of Army Regulation 635-200 due to alcohol abuse rehabilitation failure. He completed 7 years, 7 months, and 4 days of active service. 12. 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. 13. 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 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 entry-level status and an uncharacterized description of service is required. 14. 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. He accepted NJP for wrongfully having a blood alcohol level above .05 percent while on duty and for failing to go at the time prescribed to his appointed place of duty. The applicant was determined to be an alcohol abuse rehabilitation failure. 2. 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. His entire record and length of service was considered. There is no record or documentary evidence of acts of valor or service that would warrant special recognition. Therefore, there is an insufficient basis on which to upgrade his 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 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) AR20110003107 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110003107 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1