BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150013934 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ _x______ __x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150013934 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. BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150013934 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 characterization of service from under honorable conditions (general) to honorable. 2. The applicant states: a. When he was offered to participate in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) he enrolled; however, shortly after enrollment, he was deployed to Kuwait. Due to the deployment, he could not realistically complete the program in time and no other measures were offered to complete rehabilitation upon his redeployment. Once he returned, being young, he just wanted to go home so he accepted an under honorable conditions (general) discharge. b. By accepting the discharge, he gave away most of the benefits of being a veteran. If he had been more mature, a better decision would have been made. His personal mistake off duty was in no way indicative of his military service. He has not been in any trouble with the law since leaving the military and has had no alcohol related incidents. He has excelled in his community and is only seeking the benefits that any other veteran who signed on the dotted line is obligated to receive. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 was 19 years, 2 months and 10 days of age when he enlisted in the Regular Army on 1 November 1995. 3. The applicant's record contains: a. DA Form 2-1 (Personnel Qualification Record). Item 5 (Overseas Service) shows the applicant deployed to Kuwait from 1 September 1996 to 6 January 1997. b. A Military Police Report which shows the applicant smashed the glass panel of a vending machine at the Sports Dome, Fort Hood, Texas, at 0135 hours on 8 March 1997. He was transported to the hospital and treated for injuries to his right hand prior to transport to the military police station. He subsequently received a general counseling for misconduct related to the incident. c. A letter, from the Clinical Director, Fort Hood Alcohol and Drug Rehabilitation Program, dated 14 April 1997, which states the applicant was enrolled in the Fort Hood Alcohol and Drug Rehabilitation Program effective 9 April 1997. d. Numerous DA Forms 4856 (General Counseling Form) showing he received negative counseling between 11 July 1997 and 27 October 1997 for the following infractions: * failing to be on time for duty * failure to repair * showing up to formation unshaven * leaving his place of duty without being properly relieved * failing to prepare for TA-50 inspection * substandard duty performance 4. On 12 August 1997 while holding the rank/grade of private/E-2 and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to the 0630 physical training formation, on or about 25 July and 29 July 1997. 5. On 23 September 1997 while holding the rank/grade of private/E-1 and in a closed hearing, he accepted NJP under the provisions of Article 15, UCMJ, for wrongfully using marijuana at or near Fort Hood, Texas, on or about 28 July 1997. 6. On 27 October 1997, the applicant's commander notified him that he was initiating action to discharge him from the service for being an alcohol rehabilitation failure under the provisions of chapter 9, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). His commander recommended a general discharge. 7. On 27 October 1997, after consulting with counsel and being advised of his rights, he acknowledged receipt of the proposed action to separate him under the provisions of chapter 9, Army Regulation 635-200 for alcohol rehabilitation failure with a general discharge. He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him. He requested counsel and elected not to submit a statement in his own behalf; however, he requested to speak with the commander via his open door policy. 8. On 12 November 1997, the separation authority approved the applicant's discharge and directed the issuance of a general discharge. 9. He was discharged from active duty on 5 December 1997 under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure with an under honorable conditions (general) character of service. He was credited with 2 years, 1 month, and 5 days of net active service. 10. There is no indication that he applied to the Army Discharge Review Board to request an upgrade of his characterization of service within that board?s 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200, chapter 9 provides the authority and outlines the procedures for discharging enlisted personnel for alcohol or other drug abuse rehabilitation failure. Discharge is based on alcohol or other drug abuse such as the illegal, wrongful, or improper use of any controlled substance; alcohol, or other drug when the member is enrolled in ADAPCP and/or the commander determines that further rehabilitation efforts are not practical, rendering the member a rehabilitation failure. This determination will be made in consultation with the rehabilitation team. A member who: is enrolled in 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 when there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical, or long-term rehabilitation is necessary and the member is transferred to a civilian medical facility for rehabilitation. The service of members discharged under this section will be characterized as honorable or under honorable conditions. 2. 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: 1. The applicant requests an upgrade of his under honorable conditions (general) discharge to an honorable discharge. 2. Contrary to the applicant's contentions, the evidence of record shows he was enrolled in the Fort Hood Alcohol and Drug Rehabilitation Program in April 1997, well after his redeployment from Kuwait. In October 1997, he was determined to be a rehabilitation failure. The applicant was discharged on 5 December 1997 under the provisions of chapter 9, Army Regulation 635-200. 3. The applicant was well over 20 years of age at the time of his offenses. There is no evidence which indicates he was any less mature than other Soldiers of the same age who successfully completed their military service. His record contains NJP and an extensive record of negative counseling. Based on this record of indiscipline, his service did not rise to the level of a fully honorable discharge. 4. His separation action was accomplished in compliance with applicable regulations and statutes, and there is no indication of procedural errors which may have jeopardized his rights. In addition, he was provided legal counsel, and he was advised by his counsel of the nature of the separation action, the effects of a general discharge under honorable conditions and his rights under the provisions of the regulation. 5. The applicant states his post-service behavior has been positive and, while noted, the characterization of his service focuses exclusively on the period of his active service. In this respect, the evidence of record affirms separation action was warranted based upon his rehabilitation failure. 6. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans? benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The granting of such benefits is not within the purview of the ABCMR. Any questions regarding eligibility for benefits should be addressed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013934 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013934 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2