RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012153 


	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

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Samuel Crumpler

Chairperson

Mr. Robert Rogers

Member

Mr. Patrick H. McGann Jr.

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 general under honorable conditions discharge be upgraded to honorable.  He further requests that his reentry (RE) code be changed.

2.  The applicant states, in effect, that he did not get full support from his chain of command and that his former spouse caused his marital problems.  He further states that his former spouse lied to his chain of command about him not taking care of her and his two children.  The applicant states that everything his former spouse told his chain of command they took it out on him.

3.  The applicant states that he was ordered to move into the barracks after a domestic incident with his former wife.  He states that his former spouse had written bad checks, was neglecting their two children, and had another Soldier living in his quarters, and his chain of command ignored all of this.  The applicant states that he went to his First Sergeant about the matter and to legal services but he did not get help. 

4.  The applicant continues that he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and fully participated.  He states that at that time he did not have a drinking problem and his former spouse was the cause of him being in ADAPCP.  The applicant states that they told him he was in denial and later recommended that he be separated from the service.

5.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 20 December 1990, an undated statement from his current spouse, and a Disclaimer of Responsibility memorandum, dated 10 August 1990.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 December 1990.  The application submitted in this case is dated 26 August 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 2 July 1980.  He successfully completed basic combat training, advanced individual training, and was awarded military occupational specialty 12C (Bridge Crewman). 

4.  On 14 November 1988, the applicant was enrolled in ADAPCP at Fort Carson, Colorado, for a traffic accident while under the influence.  He was ordered by the court to immediately enroll in the Track II Program and to perform 
100 hours of community service.  He was reassigned to Germany and reported to ADAPCP for his court-ordered enrollment.  The applicant completed the requirements of Track II on 6 April 1989.

5.  On 2 April 1990, the applicant was again enrolled in ADAPCP.

6.  On 24 April 1990, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being drunk and disorderly.

7.  A Disclaimer of Responsibility memorandum, dated 10 August 1990 shows that the applicant disclaimed responsibility for any check written by his former spouse at all installation check cashing facilities.

8.  On 12 October 1990, the applicant accepted NJP under Article 15 UCMJ for being drunk and disorderly.

9.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 16 October 1990, shows the applicant underwent a mental evaluation by a medical physician who determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings. 

10.  By memorandum dated 29 October 1990, the applicant's ADAPCP Clinical Director advised the applicant's company commander that the applicant's enrollment in the treatment program was unsatisfactory.  The Clinical Director further stated that the applicant's progress was unsatisfactory, and he had made minimal changes.  The Clinical Director continues that the applicant's repeated denials that alcohol caused him problems had decreased the chance of recovery and that all attempts to focus the applicant to address his alcohol abuse were unsuccessful. 

11.  On 19 November 1990, the applicant was notified by his company commander that he was being processed for separation under the provisions of chapter 9 of Army Regulation 635-200 for Alcohol or Other Drug Abuse-Rehabilitation Failure. 

12.  The applicant was further advised that he was being recommended for a general under honorable conditions discharge with the reason for discharge as alcohol abuse rehabilitation failure.  He was also advised that this action was suspended for 7 days to give the applicant the opportunity to exercise the following rights:  

a.  "Request appointment of military counsel;
	
b.  submit a statement on his behalf; or

	c.  waive the foregoing rights in writing or by declining to reply within 7 days."

13.  On 20 November 1990, the applicant acknowledged that he was advised of the basis for his separation under the provisions of Army Regulation 635-200.  
The applicant indicated that he was counseled by appropriate counsel.  He voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service or description of separation no less favorable than honorable.  The applicant also indicated that he did not provide statements on his own behalf.

14.  On 7 December 1990, the applicant's conditional waiver was disapproved and he unconditionally waived his right to an administrative separation board and that he would accept a general discharge.  

15.  On 20 December 1990, the applicant was discharged under the provisions of 
chapter 9 of Army Regulation 635-200, for Alcohol Abuse-Rehabilitation Failure.  The applicant was issued a General Under Honorable Conditions Discharge Certificate.  Records show that the applicant had completed 10 years, 5 months, and 19 days of creditable active service at the time of his separation.  His DD Form 214 shows in item 26 (Separation Code) shows the entry "JPD"; item 
27 (Reentry Code) shows the entry "3"; and item 28 (Narrative Reason for Separation) shows the entry "ALCOHOL ABUSE - REHABILITATION FAILURE."

16.  Army Regulation 635-200, paragraph 3-7, provides that 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

17.  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.  At the time of the applicant’s separation, an honorable or general discharge was authorized.  

18.  Chapter 5 of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), in pertinent part, states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander, in consultation with the ADAPCP staff, determines that further rehabilitation efforts are not practical and that rehabilitation is a failure.

19.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JPD was the appropriate code for the applicant based on the guidance provided in this regulation for Soldiers separating under the provisions of chapter 9, Army Regulation 635-200 (Enlisted Personnel), by reason of alcohol abuse – rehabilitation failure.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-3 as the proper reentry code to assign to Soldiers separated under the provision of the chapter 9 at that time.  

20.  Army Regulation 601-210, covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-8 of the regulation states that RE-3 applies to a Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not get full support from his chain of command and that his former spouse was the cause of his marital problems.  There is no evidence and the applicant has not provided evidence that shows his chain of command did not support him or that his former spouse was the cause of his marital problems.  He had the opportunity to raise these issues at an administrative board and waived the opportunity to do so.  He had an opportunity to make a statement wherein he could have raised these issues during his separation process and failed to do so.  Therefore, there is no basis for this argument.

2.  Evidence of record shows that he received two Articles 15 for two incidents of being drunk and disorderly.  The applicant's records further show that his ADAPCP rehabilitation assessment was unsatisfactory based in part on consultation with the ADAPCP staff (who were not members of the chain of command), and that he was recommended for separation.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of an honorable discharge.

3.  Evidence of record shows the applicant was involuntarily separated for Alcohol Abuse-Rehabilitation Failure.

4.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE 3 code assignment.  Lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the assigned RE 3 code was appropriate.  

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 December 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
19 December 1993.  However, 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

__SC ___  __RA ___  ___PHM_  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.




____ Samuel Crumpler___
          CHAIRPERSON



















INDEX




CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.