RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 19 April 2007
DOCKET NUMBER: AR20060013784
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
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. John Slone
Chairperson
Mr. David Haasenritter
Member
Mr. John Heck
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 narrative reason for separation be changed.
2. The applicant states that he would like his narrative reason for separation changed to allow him to reenlist in the Army. He states that his discharge and reenlistment code have already been changed and that he was told his narrative reason for separation is keeping him from reenlisting. He also states that his goal is to become a helicopter pilot and that he will need an age waiver.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 215 (Correction to DD Form 214).
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on
6 April 1984. The application submitted in this case is dated 21 September 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 applicants failure to timely file.
3. The applicant enlisted on 3 March 1983 and trained as an infantryman. On
6 April 1984, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.
4. Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, CHAPTER 9." Item 26 (Separation Code) on his DD Form 214 shows the entry, "JPC." Item 27 (Reentry Code) shows the entry, 3C. Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "DRUG ABUSE REHABILITATION FAILURE."
5. A DD Form 215, dated 1 May 1987, amended item 27 on his DD Form 214 to show the entries, RE-3 and RE-3C.
6. On 3 May 1994, the Army Discharge Review Board (ADRB) upgraded the applicants discharge to honorable. The ADRB determined that the reason for discharge was proper and equitable and voted not to change it.
7. 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 Alcohol and Drug Abuse Prevention and Control Program 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 applicants separation an honorable or general discharge was authorized. However, an honorable discharge was required if restricted use information was used.
8. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation, in effect at the time, states the reason for discharge based on separation code JPC is Drug abuse rehabilitation failure and the regulatory authority is Army Regulation 635-200, chapter 9.
9. Paragraph 4-25q of Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) states that persons with prior service last discharged from any component of the Armed Forces for drug or alcohol abuse or as rehabilitation failure during last period of service is a nonwaivable disqualification.
DISCUSSION AND CONCLUSIONS:
1. The narrative reason for separation used in the applicants case is correct and was applied in accordance with the applicable regulations. Regrettably, and not withstanding the fact the ADRB upgraded his discharge, the fact he was last separated due to drug abuse rehabilitation failure is currently a nonwaivable disqualification for enlistment.
2. Records show the applicant should have discovered the alleged error now under consideration on 3 May 1994; therefore, the time for the applicant to file a request for correction of any error expired on 2 May 1997. 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
JS_____ ___DH___ __JH____ 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.
__John Slone__________
CHAIRPERSON
INDEX
CASE ID
AR20060013784
SUFFIX
RECON
DATE BOARDED
20070419
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
110.0200
2.
3.
4.
5.
6.
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