IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150014746 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 IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150014746 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. IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150014746 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 under honorable conditions (general) discharge. 2. The applicant states he is requesting an upgrade to honorable for his last tour of service. 3. The applicant provides two DD Forms 214 (Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty) and a Certification of Military Service. 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 13 July 1976. He served 2 years, 6 months, and 19 days on active duty and he was honorably released from active duty on 31 January 1979 for immediate reenlistment, which he accomplished the following day. 3. His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 4 February 1982 for assaulting a female private first class by choking her about the throat with his hands on or about 16 January 1982. The applicant was a specialist five (SP5)/E-5 at the time of the incident. His punishment included forfeiture of pay and extra duty. 4. In a letter, dated 25 June 1982, the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) clinical director stated the applicant was admitted to the program on 17 March 1982. He participated in a treatment program awareness education group and individual therapy. His progress was unsatisfactory and he should be considered a rehabilitation failure. The alcohol and drug control officer concurred with the clinical director's assessment. 5. On 8 July 1982, the company commander notified the applicant of his intent to recommend the applicant?s elimination from military service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9 (Alcohol or Other Drug Abuse (Exemption Policy)). He stated his recommendation was based on the declaration of rehabilitation failure on 25 June 1982 by the ADAPCP. He further stated the applicant had several alcohol related incidents since being admitted into the ADAPCP. 6. On 9 July 1982, the applicant acknowledged receipt of the commander's proposed action under the provisions of Army Regulation 635-200, chapter 9. He signed the acknowledgement of notification indicating that he did not desire military legal counsel. He elected not to submit a statement in his behalf. 7. On 18 July 1982, the separation authority approved the recommendation to discharge the applicant and directed he receive a General Discharge Certificate. 8. On 27 July 1982, he was discharged accordingly. His DD Form 214 shows the narrative reason for separation was "Alcohol or other drug abuse (Exemption policy)" under the provisions of Army Regulation 635-200, chapter 9 with a character of his service listed as under honorable conditions. He was discharged in the rank/grade of SP5/E-5 and credited with completing 3 years, 5 months, and 15 days of active duty service this period and 2 years, 6 months, and 18 days of prior active service. 9. 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. REFERENCES: 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/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. b. 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 evidence of record shows the applicant was discharged as an ADAPCP rehabilitation failure. All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing. 2. The evidence further shows he was placed in the ADAPCP program in the grade of E-5 with over 6 years of active duty service. Once placed in this program, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014746 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014746 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2