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Decision Text

ARMY | BCMR | CY1997 | 9707687
Original file (9707687.rtf) Auto-classification: Denied
2. The applicant requests that her discharge be rescinded and that she be ordered back to active duty.
3. The applicant’s military records show that she was born on 16 February 1973. She completed 12 years of formal education. She entered the Delayed Entry Program on 31 July 1991 and enlisted in the Regular Army on 19 November 1991 for 6 years. She completed basic training and Advanced Individual Training and was awarded Military Occupational Specialty 91K (Medical Laboratory Specialist).

4. Prior to 2 March 1996, the applicant had a “clean” record, no record of disciplinary actions, completion of the Primary Leadership Development Course, promotion to Sergeant E-5 on 1 January 1995 and three “excellence,” two “successful”, and an “among the best” rating on her first, 9501 - 9512, non-commissioned officer evaluation report (NCO-ER).

5. On 2 March 1996, the applicant had a disagreement with a civilian registered nurse at her place of duty concerning a urinalysis lab test, culminating in the nurse preparing a memorandum for record that the applicant “smelled strongly of alcohol.” The medical officer on duty also submitted a statement that “…the smell of alcohol was detectable standing approximately four feet from the tech. There was no slurred speech…or disco-ordination observed to suggest intoxication at that time.” These statements led to the applicant’s commander recommending she be discharged under the provisions of chapter 9, Army Regulation 635-200 for alcohol rehabilitation failure.

6. On or about 24 April 1996, the applicant’s commander initiated Chapter 9 discharge proceedings. The applicant submitted statements in her behalf from co-workers and supervisors attesting to her outstanding duty performance and, in some instances, contradicting comments made in the nurse’s and medical officer on duty’s statements.

7. On 30 April 1996, the applicant was psychiatrically evaluated and was cleared for any administrative action deemed appropriate by the command. A mental status evaluation found her mentally responsible and with the mental capacity to understand and participate in board proceedings.

8. On 14 May 1996, the applicant received a certificate of achievement, signed by the commander who initiated discharge proceedings, “For outstanding service … reflects great credit upon yourself and the SHAPE Healthcare Facility.”

9. On 11 June 1996 the appropriate authority approved the request and directed the applicant receive an honorable discharge.

10. Accordingly, she received an honorable discharge, in pay grade E-5, on 8 July 1996 under the provisions of Army Regulation 635-200, Chapter 9 - alcohol rehabilitation failure. Her reentry eligibility (RE) code was 4 - ineligible for enlistment. She had completed 4 years, 7 months and 20 days of creditable active service with no lost time. Her awards and decorations included the Army Commendation Medal, the Army Achievement Medal and the Army Good Conduct Medal.

11. 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 individuals because of alcohol or other drug abuse when the soldier is enrolled in an Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and the commander determines that further rehabilitation efforts are not practical, rendering the soldier a rehabilitation failure. A member who is enrolled in ADAPCP for alcohol or 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.

12. On 9 April 1997, the Army Discharge Review Board (ADRB) approved the applicant’s request for correction of her military records. The ADRB concluded that her separation under the provisions of Chapter 9 was improper. Verified evidence showed the applicant had never been enrolled in ADAPCP. That Board directed the applicant’s reason for discharge be changed to Secretarial Authority, separation code KFF; the authority for discharge changed to Chapter 5, paragraph 5-3; and the reenlistment code changed to RE1, qualified for enlistment if all other criteria are met. However, that Board stated it did not have the authority to order reinstatement.

 CONCLUSIONS :

1. The Board concludes that an injustice exists in this case. The applicant was an above average soldier with no record of any disciplinary actions prior to this incident, with several awards and decorations to her credit, and who was promoted to the grade of E-5 on time, just after the normal 36-month mark for primary zone consideration. This, plus the fact she received a certificate of achievement after the improper discharge proceedings were initiated, indicates the applicant had potential for further Army service.

2. Since the applicant’s enlistment would not have expired until 18 November 1997, and since there is good reason to conclude that, but for her premature and improper discharge, she would have remained on active duty to complete that enlistment, it appears appropriate and proper to void her premature discharge, thus reviving her old enlistment contract, to show that she continued to serve under that enlistment, to grant her full active duty credit through her ETS, and to issue her a new Honorable Discharge Certificate, effective the date of her scheduled ETS.

3. It does not appear appropriate or proper to credit the applicant with active service beyond her scheduled ETS, or to now order her directly to active duty on the assumption that if qualified, she would have reenlisted at her ETS. Reenlistment is a contract, the creation of which requires volitional acts by the applicant which did not occur and which should not be retroactively presumed.

4. It would be appropriate, however, to give her the opportunity to apply for reenlistment under the applicable regulations.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below:

 RECOMMENDATION :

1. That all of the Department of the Army records related to this case be corrected:

a. by voiding the ADRB-corrected discharge which was issued to the applicant on 9 April 1997 and by showing that she continued to serve on active duty until 18 November 1997, when she was separated from the service with an Honorable Discharge Certificate, by reason of her ETS, under the provisions of chapter 4, Army Regulation 635-200; and

b. by returning to her all benefits and property she lost as the result of her discharge prior to her normal ETS.

2. This Board notes that the ADRB already directed that her RE code be changed to RE1. This Board removes any impediments to her reenlistment in the Regular Army in pay grade E-5, provided she is morally and physically qualified and makes application therefor within 120 days of official notification of this action by the Commander, Army Reserve Personnel Center.

 BOARD VOTE :
GRANT AS STATED IN RECOMMENDATION

 GRANT FORMAL HEARING

 DENY APPLICATION
                                                     CHAIRPERSON
                                            

        

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