MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 June 2002
         DOCKET NUMBER: AR2001064377


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Antoinette Farley		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. John T. Meixell		Member
Mr. Thomas E. O'Shaughnessy, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
                  Records

         Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by upgrading his general discharge (GD) to a fully honorable discharge.

APPLICANT STATES: In effect, that his record as reported in the Memorandum of Consideration was a gross misrepresentation and exaggeration. He states that he did not refer himself to the mental health clinic on 5 October 1989. He adds that he did not lie when he signed his DD Form 2246 (Applicant Medical Prescreening Form) at enlistment. He states that he was correct when he signed his DD Form 2246, because he was not addicted to drugs. He claims that he did not start drinking heavily until after he was stationed in Bamberg, Germany. He adds that he was clean and sober with occasional drinking. Between 2 August and 23 October 1989, he was only counseled three times; on 5 September
1989 for being drunk during driver training, on 2 October 1989 for not securing an M-16A2 rifle and on or about 7 October 1989 for growing a beard. He does not consider them a pattern of misconduct. He adds that he did take blood tests when he entered and left the service. He also points out that he loved physical fitness training and came “close to maxing the physical fitness test and receiving the Presidential Award.” At no time did he fail a physical training exam. He reiterates that the chaplain has records, which would support his allegations. He states that he was told he was receiving a chapter 11 separation for alcoholism not a chapter 14 for misconduct.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2000046805) on
27 March 2001.

The applicant’s contentions are new arguments that require Board consideration.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

Army Regulation 635-200, chapter 9, contains the authority and outlines the procedures for discharging individuals 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. At the time of the applicant’s separation an honorable or general discharge was authorized. However, an honorable discharge was required if restricted use information was used.

Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry-level status. It states, in pertinent part, that
separation under this chapter applies to soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they
cannot or will not adapt socially or emotionally to military life. Entry-level status is defined as the first 180 days of continuous active duty. It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized. The applicant was ineligible for consideration for discharge under the provision of chapter 11, AR 635-200 because on the date he was recommended for separation, he had already completed in excess
of 180 days service.

Army Regulation 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, it is concluded:

1. The Board noted that the applicant initially sought out information from the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on
23 October 1989. At that time he asked to be diagnosed and enrolled in the program; but, after speaking with an alcohol and drug abuse counselor, he refused the services of ADAPCP. Since, the applicant was not enrolled in the ADAPCP program, he could not have been declared a rehabilitation failure. When not precluded by the limited use policy, offenses involving alcohol or drugs may properly be used as the basis for proceedings under chapter 14.

2. The Board concludes that even three counseling statements for misconduct taken together with his two non-judicial punishments under Article 15, Uniform Code of Military Justice clearly evidences a pattern of misconduct that warranted separation with less than an honorable discharge.

3. The applicant was properly separated for a pattern of misconduct and the separation authority was well within his discretion to direct a separation with a GD.

4. The applicant has provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that his service mitigated his unacceptable conduct.

5. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

6. 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

___SD __ ___JTM_ __TEO __ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001064377
SUFFIX
RECON
DATE BOARDED	20020606
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.