RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070009855 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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 correction of Item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show “Misconduct (Substance Abuse)” instead of “Misconduct (Drug Abuse).” 

2.  The applicant states that he had an alcohol problem during his military service, but he never used drugs.  He argues that alcohol is a substance, not a drug and that he should have been discharged for substance abuse. 

3.  The applicant provided a copy of his DD Form 214, dated 28 September 2005; a copy of a police violation report and arrest record and supporting documents; and his Certificate for completion of “DUI SCHOOL,” dated 
15 January 2006, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he initially enlisted in the Regular Army on 2 January 2001 for a period of 3 years.  Subsequently, he reenlisted on 24 June 2003 for a period of 4 years and on 14 September 2004 for a period of 5 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  The highest grade he attained during his military service was specialist four/pay grade E-4.

2.  The applicant's records reveal a history of developmental counseling for repeatedly failing to report to the morning formation on multiple occasions and for disobeying orders.

3.  The applicant’s records show that he was awarded the Afghanistan Campaign Medal, the Iraqi Campaign Medal, the Presidential Unit Citation, The Global War on Terrorism Service Medal, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Bar (2nd Award), the Parachutist Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  The applicant’s records further show that he was arrested by civilian authorities on 11 February 2005 for driving under the influence of alcohol.  On 12 February 2005, his on post driving privileges were suspended.  

5.  On 29 May 2005, the applicant was arrested and charged with operating a motor vehicle while under the influence of alcohol (DUI).  He pled guilty to the charge in civilian court and was sentenced to confinement for 30 days (29 days suspended), fined $200, ordered to pay $460 in costs, and ordered to attend a 90 day in-patient alcohol program.

6.  On 26 June 2005, the applicant was arrested and charged with speeding 26 miles per hour over the speed limit; driving on a DUI suspended operator’s license; displaying and/or possession of a cancelled/fictitious operator’s license; and operating a motor vehicle under the influence of alcohol/drugs (3rd offense). On 5 July 2005, he pled guilty to the DUI (3rd offense charge) and was sentenced to confinement for 12 months (10 months suspended), ordered to enter treatment, was placed on 2 years unsupervised state probation, and ordered to enter and complete an inpatient treatment program.

7.  On 15 September 2005, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct, commission of a serious offense.

8.  On 15 September 2005, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.

9.  On 16 September 2005, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200.  He further recommended a general discharge under honorable conditions.

10.  On 20 September 2005, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct/commission of a serious offense, and directed the applicant be furnished a general discharge under honorable conditions.  The DD Form 214 the applicant was issued confirms he was separated on 
28 September 2005 with a general discharge under honorable conditions.  This DD Form 214 further confirms that he completed a total of 4 years, 6 months, and 27 days of creditable active military service and he had 60 days of lost time due to being in confinement.

11.  The applicant submitted a certificate, dated 15 January 2006, showing that he completed the Phoenix Center’s DUI School, designed for the education, information and development awareness of misuse of alcohol and other drugs in driving and also for developing individual responsibility. 
12.  On 26 January 2007, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12(c) prescribes the conditions that subject Soldiers to discharge for misconduct.  It states that Soldiers are subject to action per this paragraph for commission of a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual of Courts- Martial (MCM).  The separation reason in all separations authorized by this paragraph will be “misconduct-abuse of illegal drugs.”  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.  

14.  Army Regulation 600-85 [Army Substance Abuse Program (ASAP)] prescribes policies and procedures to implement, administer, and evaluate the ASAP.  It states that administrative separation action will be initiated for Soldiers involved in two serious incidents of alcohol related misconduct in a year, such as more than one instance of drunk on duty or operating a motor vehicle while intoxicated.  It also states that Soldiers identified as drug abusers will be processed for administrative separation in accordance with the appropriate enlisted or officer separation regulation, with the exception of self-referrals to the ASAP.  The regulation defines alcohol abuse as "Any irresponsible use of an alcoholic beverage which leads to misconduct, unacceptable social behavior, or impairment of an individual's performance of duty, physical or mental health, financial responsibility, or personal relationships."  It defines drug abuser as "The use or possession of controlled substances, or illegal drugs, or the nonmedical or improper use of other drugs (for example, prescription, and over the counter and so forth) that are packaged with a recommended safe dosage.  That includes the use of substances for other than their intended use (for example, glue and gasoline fume sniffing or steroid use for other than that which is specifically prescribed by competent medical authority)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be changed to show “Misconduct (Substance Abuse)” instead of “Misconduct (Drug Abuse).” 

2.  Although Army Regulation 600-85 makes a distinction between alcohol abuse and drug abuse, the regulation governing separations, Army Regulation 635-200, does not.  The applicant was discharged under the provisions of paragraph      14-12c(2) of AR 635-200.  The only valid narrative reason for discharge permitted under that paragraph is "Misconduct (Drug Abuse)."

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __ecp___  __jrh___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



							Linda D. Simmons
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070009855
SUFFIX

RECON

DATE BOARDED
20071204
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
20050928
DISCHARGE AUTHORITY
AR 635-200, Chap 14
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.