RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 April 2007
      DOCKET NUMBER:  AR20060007677


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

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |                                  |     |Analyst              |

      The following members, a quorum, were present:

|     |                                  |     |Chairperson          |
|     |                                  |     |Member               |
|     |                                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected by upgrading his
discharge to honorable, removing the narrative reason for his separation,
and by changing or removing his reentry code.

2.  The applicant states that he was a whistle-blower who blew the whistle
on criminal activity within his unit.  He was stereotyped and could not get
fair or just treatment.  He was isolated because of threats on his life,
and feels his chain of command failed him.  At the time of his discharge he
was under extreme duress and feels he was pushed out.  In 1990 he wrote to
his Congressman for his military records and was going to apply for
correction of his records but did not want to relive his ordeal.  In 2002
after being denied enlistment in the Reserve, he reviewed his military
records and discovered missing documents and no mention of him being a
whistle blower.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); his general discharge certificate;
certificates of course completion and performance; verification of licenses
as a gunsmith, truck driver and heavy equipment driver; and statements
detailing his military service as well as instances of his being harassed
for being a whistle-blower, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 10 October 1989.  The application submitted in this case is
dated 18 May 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 10 February 1987, for a
period of 3 years.  He served in Germany from 8 June 1987 to 9 October
1989.


4.  On 19 June 1989, a Medical Record Consultation Sheet shows the
applicant was a walk-in self-referral at the Nuernberg American Army
Hospital, Department of Psychiatry, for occupational problems.  He stated
that every day he consumed between 5 to 15 beers with shots, and had an
increase in fights and irritability.   The consultation sheet notes that he
had been enrolled in a Track II Program under the Army Drug and Alcohol
Prevention and Control Program (ADAPCP).

5.  On 15 August 1989, a synopsis of the applicant's efforts in the ADAPCP
showed he did not remain abstinent from alcohol, did not attend group
sessions, did not take the prescribed medication, and did not attend
Alcoholics Anonymous as mandated under his treatment plan.  On 27 June
1989, the applicant was enrolled in Track II with abstinence as the primary
treatment goal.  On 12 July he was diagnosed as alcohol dependent and was
prescribed antabuse.  While enrolled in the program the applicant came to
two sessions, on 20 July and
21 July 1989, and walked out during the beginning of the sessions on both
occasions.  He was a "no show" on two other scheduled sessions.  The
synopsis revealed that the applicant's prognosis was poor, that he refused
treatment for his alcohol problems, that further rehabilitation efforts
were not practical, and separation from the service under the provisions of
Army Regulation 635-200, Chapter 9, or other appropriate chapter was
appropriate.

6.  On 21 September 1989, the applicant was notified by his commander that
he was initiating action to discharge him under the provisions of Army
Regulation 635-200, Chapter 9, with a general discharge, for ADAPCP
Rehabilitation Failure.  His commander stated that he had been given an
opportunity to overcome his problem with substance abuse, but had admitted
to continued consumption of alcohol while in the Track II program.  The
applicant was advised of his rights and waiver options, and was also
informed that he would be notified once a date for his medical examination
had been set.

7.  On 21 September 1989, the applicant acknowledged notification by his
commander of his pending separation action.  He waived legal counsel and
elected not to submit a statement on his own behalf.

8.  On 21 September 1989, the applicant's commander recommended his
discharge from the Army, under the provisions of Army Regulation 635-200,
Chapter 9, stating that the applicant had admitted to continued use of
alcohol, had been apprehended as a possible suspect in an assault, and did
not show he had the desire to control his alcohol abuse.

9.  On 22 September 1989, the appropriate separation authority directed the
applicant's discharge under the provisions of Army Regulation 635-200,
Chapter 9, with the issuance of a general discharge.

10.  On 4 August 1989, a medical examination cleared the applicant for
separation.

11.  On 10 October 1989, the applicant was discharged under the above cited
regulation with a general (under honorable conditions) discharge, for
alcohol abuse, rehabilitation failure.  His DD Form 214 indicates he had 2
years,
8 months, and 1 day of active service, was assigned the reentry code of 3,
and the separation code of JPD.

12.  The applicant provides statements in which he gives a detailed account
of his military service, and submits course completion and performance
certificates. He submits self-authored statements attesting to his not
having a criminal record, and his status as a commercial truck driver.

13.  The applicant states that he was a whistle blower, blowing the whistle
on the criminal activity within his unit to the proper authorities.  The
criminal activity included drug trafficking, extortion, and drug and
alcohol abuse.  He describes an instance in 1987, when drug use by members
of his unit while on an exercise caused an accident in which he was
injured.  After reporting the criminal activity of the members of his unit
he was harassed, humiliated, assaulted on numerous occasions, and his life
was threatened.

14.  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.  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.  The regulation provided for issuance of
an honorable or general discharge.

15.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the United States Army Reserve.
Chapter 3 of that regulation prescribed basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.
16.  RE-3 applies to persons not qualified for continued Army service, but
the disqualification is waivable. Certain persons who are discharged under
the provisions of Army Regulation Chapters 9, 10, 13, and 14 are so
disqualified.  Under current policy, individuals separated under Chapter 9,
for alcohol abuse rehabilitation failure receive a RE code 4, which applies
to individuals with a non-waivable disqualification.

17.  Army Regulation 635-5-1 states that SPD codes are three-character
alphabetic combinations, which identify reasons for, and types of
separation from active duty.  The primary purpose of SPD codes is to
provide statistical accounting of reasons for separation.  They are
intended exclusively for the internal use of DOD and the military services
to assist in the collection and analysis of separation data.  It notes that
JPD is the appropriate SPD code for individuals separated for alcohol
rehabilitation failure, under the provisions of Army Regulation 635-200,
Chapter 9.

18.  Army Regulation 601-210, which establishes the policies and provision
for enlistment in the Regular Army and United States Army Reserve, states
that
RE codes may be changed only if they are determined to be administratively
incorrect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.  The applicant was
enrolled in an ADAPCP and failed to comply with treatment plans and goals,
continued to abuse alcohol, and was determined to be a rehabilitative
failure.

3.  The evidence confirms that the applicant’s RE code was assigned based
on the fact that he was not qualified for continuous service at the time of
separation. The applicant’s RE code was and remains appropriate considering
the basis for his separation.

4.  There is no evidence in the available records to substantiate the
applicant's claim that he was a whistle blower or that he was stereotyped
and received unfair and unjust treatment.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 October 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
9 October 1992.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JM____  ___TR __  __RN ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007677                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070417                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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