RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060015740 


	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. Kenneth Wright

Chairperson

Mr. Patrick McGann

Member

Ms. Karmin Jenkins

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 discharge be upgraded to honorable.  He also requests that he be reimbursed for his Montgomery GI Bill (MGIB) reductions. 

2.  The applicant states that money was taken from him to attend college and was never given back to him upon his discharge. 

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 16 January 1991.  The application submitted in this case is dated 8 March 2006; however, the application was received in this office on 8 November 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 on 13 June 1989 for a period of 4 years.  His DA Form 3286-60/6 (Statement for Enlistment US Army Enlistment Options – Continued) shows he was automatically enrolled in the MGIB and was enlisting for the U.S. Army College Fund.  He acknowledged that he understood he must remain enrolled in the MGIB and that this contribution was non-refundable.  He successfully completed basic training and advanced individual training in military occupational specialty 31M (multi-channel communications operator).

4.  On 28 June 1990, the applicant was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) as a result of a drunk and disorderly charge.  

5.  On 13 July 1990, the applicant received a memorandum of reprimand for misconduct (being intoxicated and out of control) on 26 June 1990.

6.  The applicant was enrolled into ADAPCP on 3 August 1990.  

7.  On 6 November 1990, the applicant was declared a rehabilitation failure based on noncompliance with the abstinence policy.

8.  On 27 December 1990, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure.  The unit commander cited that the applicant had been declared a rehabilitation failure by the ADAPCP personnel for not complying with their abstinence policy.  He recommended that the applicant receive a general discharge.

9.  On 28 December 1990, the applicant consulted with counsel, acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued, and elected not to submit a statement on his own behalf.  

10.  On 7 January 1991, the separation authority approved the recommendation for discharge and directed that the applicant be furnished a general discharge.     

11.  Accordingly, the applicant was separated with a general discharge on 
16 January 1991 under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse rehabilitation failure.  He had served 1 year, 7 months, and 4 days of creditable active service.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

13.  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 the 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. 

14.  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.  

15.  Paragraph 2-7 of Army Regulation 621-202 (Army Educational Incentives and Entitlements) states, in pertinent part, that all eligible Soldiers are automatically enrolled in the MGIB, unless they choose to disenroll.  The Defense Finance and Accounting Service will automatically reduce $100 from basic pay for the first full 12 months of all eligible active Soldiers, unless the individual chooses to disenroll, the MGIB enrollment is irrevocable, and monthly reductions are non-refundable.   

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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. 
  
2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3.  It appears to have been the unit commander’s and the separation authority’s judgment that the applicant did not meet the criteria for an honorable discharge.  The Board will not substitute its judgment for that of the commander.  Therefore, there is insufficient evidence on which to base an honorable discharge in this case.

4.  Since the governing regulation states that monthly reductions are non-refundable and his enlistment contract advised him of that fact, there is no basis for granting the applicant’s request for reimbursement of his MGIB reductions.
  
5.  Records show the applicant should have discovered the alleged injustice now under consideration on 16 January 1991; therefore, the time for the applicant to file a request for correction of any injustice expired on 15 January 1994.  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

KW_____  _PM____  ___KJ___  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.



____Kenneth Wright____
          CHAIRPERSON




INDEX

CASE ID
AR20060015740
SUFFIX

RECON

DATE BOARDED
20070510
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19910116
DISCHARGE AUTHORITY
AR 635-200 Chapter 9
DISCHARGE REASON
Alcohol abuse rehabilitation failure
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.