APPLICANT REQUESTS:  That his DD Form 214, Certificate of Release or Discharge From Active Duty, be corrected by reflecting his pay grade as E-4, not E-1, and that Block 15a, Member Contributed to Post-Vietnam Era Veterans’ Educational Assistance Program (VEAP) be change from ‘No’ to ‘Yes’.  He also requests that a record of nonjudicial punishment (NJP) which he received under Article 15, Uniform Code of Military Justice, for drunk driving be voided and that $822 in fines be refunded, and that his reduction to E-1 be voided and his rank restored to E-4 with all back pay and allowances [$1,142 by his estimate].

APPLICANT STATES:  That he was charged with drunk driving and given NJP, but he was not driving.  He adds that he contributed $100 a month for 12 months to the GI Bill.

COUNSEL CONTENDS:  No contentions were made.

EVIDENCE OF RECORD:  The applicant's military records show:

He was born on 28 October 1967 and enlisted in the Regular Army for 4 years on 12 March 1991.  On his enlistment contract, he elected educational benefits under the Montgomery GI Bill which obligated him to contribute $100 a month for his first 12 months of service in order to receive a maximum basic benefit of $10,800 upon completion of his 4 year obligation with an honorable discharge [his actual contributions only totaled $1,157].

Because of prior service in the Army National Guard, the applicant was assigned directly to a signal unit in Panama, reporting on/about 30 March 1991.  Upon his arrival, he immediately established himself as a problem soldier.  As early as July 1991, he began issuing worthless checks.  In October 1991, Headquarters, US Army Garrison - Panama, suspended his check cashing privileges for 6 months.  In an efforts to instill fiscal responsibility, the applicant’s commander sent him to a checkbook management class which he successfully completed on 13 April 1992.  On 30 April 1992, his check cashing privileges were restored.

On 10 June 1992, the applicant’s commander was notified that the applicant was once again writing bad checks.  This time, the applicant was offered NJP.  He accepted and was punished with 14 days of extra duty.  Failing to learn a lesson, the applicant continued to write bad checks and, on 14 June 1993, his check cashing privileges were again suspended.

On 29 October 1993, the applicant and a fellow soldier went to a Halloween party in the civilian community.  The applicant drove to the party in his privately owned vehicle (POV).  After being at the party and consuming alcohol, he and his friend left.  Several witnesses saw the applicant drive off in his POV.  Shortly thereafter, the applicant’s vehicle was involved in a two-car traffic accident and he, his friend, and a Panamanian civilian were injured.  The two Americans were transported to a military hospital and treated for injuries.  They were also given blood-alcohol tests which revealed that the applicant was legally drunk with an alcohol level of 0.103% [0.100% is legally drunk] and his passenger’s blood-alcohol level was 0.055%.

There is a discrepancy between the Panamanian Police report and the Military Police (MP) report of the accident.  The Panamanian Police responded to the accident and cited the applicant’s passenger, who was still in the car [the applicant was apparently outside of the car], as the driver; the MP report, which was completed at the hospital, lists the applicant as the driver.  The MP asked the applicant who was driving and the applicant stated that he had been behind the wheel and executed a sworn written statement to that effect.  This also comports with the MP’s reconstruction of the accident based on the injuries of the two soldiers and the physical damage to the applicant’s car.

On 18 November 1993, the applicant’s battalion commander offered him NJP for the offense of drunk driving.  The applicant accepted and was reduced from Specialist (E-4) to Private (E-1), given 45 days of extra duty and restriction, and caused to forfeit $411 per month for 2 months.

In December 1993, his unit commander notified the applicant that he was initiating action to separate him for misconduct under the provisions of chapter 14, Army Regulation (AR) 635-200.  The applicant requested a hearing before a board of officers in order to plead his case.  The hearing was held on 9 February 1994 and the applicant and his legal counsel were present.  He indicated that he had made good on all of the bad checks that he had written.  He also stated that he was driving his car when the accident occurred; that he didn’t believe that he was intoxicated, but he doesn’t dispute the blood-alcohol test results.  Upon hearing all of the testimony, the board voted to recommend that the applicant be separated for misconduct under the provisions of paragraph 14-12b, AR 635-200.

On 8 March 1994, the applicant was separated with a general discharge issued under honorable conditions.  His DD Form 214 reflects 2 years, 11 months, and 27 days of creditable service and no lost time.  It also shows that he did not contribute to the Post-Vietnam era VEAP program and that his pay grade at the time of separation was E-1.

The Montgomery GI Bill replaced the Veteran’s Educational Assistance Program, or VEAP, for individuals entering military service after 30 June 1985.  Under the provisions of the Bill, soldiers who entered active duty after that date automatically contributed $100 a month from their pay for their first 12 months of service unless they specifically elected not to participate in the program.  This nonrefundable contribution was then supplemented by the Government to provide up to $10,800 in total benefits.  If an individual was released from his/her initial obligated period of active duty for the convenience of the Government, that person must have served at least 20 months of an obligation of less than 3 years, or 30 months of an obligation of 3 years or longer.  Participants who failed to complete the required obligated service must have been discharged for a service-connected disability, for hardship, for a pre-existing medical condition, or involuntarily separated due to a reduction in force in order to qualify.  Also, the veteran who completed his/her obligated period of service must have been discharged with an honorable discharge.

AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board believes that the applicant was the driver of the POV involved in the traffic accident and that he was a drunk driver.  First, he was seen by a number of witnesses driving away from the Halloween party.  Second, physical evidence pertaining to his injuries and the damage to his POV support his having been behind the steering wheel at the time of the accident.  Finally, he, himself, admitted to being the driver when questioned by MP’s the day after the accident; he reiterated this position more than 90 days later at his board of officers inquiry.

2.  The NJP which the applicant’s battalion commander administered because of the applicant’s drunk driving was properly done and will not be voided.

3.  The applicant’s DD Form 214 is correct.  He was an E-1 at the time of his separation, and because the VEAP was replaced by the Montgomery GI Bill, “no” is the correct response in Block 15a in reference to participation in that program. 

4. The applicant is not eligible to receive a Montgomery GI Bill payment and, thus, forfeits his $1,157 contribution for two reasons.  First, he did not complete his 4 year obligation (and he was not discharged for the convenience of the Government) and; second, he did not receive an honorable discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                                       GRANT          

                                       GRANT FORMAL HEARING

                                       DENY APPLICATION




						Karl F. Schneider
						Acting Director