RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 December 2007
	DOCKET NUMBER:  AR20070011347 


	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:


Mr. Jeffrey C. Redmann

Chairperson

Mr. John G. Heck

Member

Mr. Qawiy A. Sabree

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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states that he never received any disciplinary action during his military service and that the only reason he requested a discharge was because of the early return of his spouse from Germany to the United States.  He concludes that he gave the Army good service, as his military records would show, and that his command sergeant major (CSM) was unjust and did this as a punishment. 

3.  The applicant did not provide any additional documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he enlisted in the Regular Army on 26 April 1983 and subsequently had a series of reenlistments.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  The highest rank he attained during his military service was sergeant (SGT)/E-5.

3.  The applicant's records further show that he was awarded the Army Service Ribbon, the Army Achievement Medal (1st oak leaf cluster), the Noncommissioned Officer (NCO) Professional Development Ribbon (2nd award), the Army Good Conduct Medal (2nd award), the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Expert Field Medical Badge. 

4.  The applicant's records also show that he served in Germany during the period 28 February 1987 through 5 April 1990.  He was assigned initially to Headquarters and Headquarters Company, 4th Battalion, 69th Armor, as an Aide Evacuation Leader; however, on 10 October 1987, he was reassigned to Headquarters and Headquarters Company, 4th Battalion, 34th Armor, as an Emergency Medical Treatment NCO.

5.  On 4 January 1990, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 9 of Army Regulation 635-200 (Personnel Separations), by reason of Army Drug and Alcohol Prevention Program (ADAPCP) failure.  The commander remarked that the applicant had been enrolled in the ADAPCP three times and failed to successfully complete the course each time; that his behavior was prejudicial to the good order and discipline of the Army; and that his discharge was in the best interest of the Army.  The commander further informed the applicant that he recommended the applicant be furnished an honorable discharge.

6.  On 5 January 1990, the applicant was furnished a counseling statement by his immediate commander, not as a punitive measure, but as an administrative measure to stress that he could be separated under the provisions of chapter 9 of Army Regulation 635-200 for ADAPCP failure.  The applicant acknowledged the counseling and concurred with the information on the counseling statement.  He also placed the entry "I wish to be separated as soon as possible" in Item 11 (Acknowledgement) of the counseling form.

7.  On 22 January 1990, the applicant consulted with legal counsel and was advised of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  He subsequently acknowledged notification by his commander of his pending separation action; waived consideration of his case by and personal appearance before an administrative board; and elected not to submit a statement on his behalf.

8.  On 22 January 1990, the applicant's commander recommended his discharge from the Army under the provisions of Army Regulation 635-200, Chapter 9, for rehabilitation failure.  

9.  On 9 March 1990, the applicant's battalion commander recommended approval of the separation action with the issuance of a General Discharge Certificate. 


10.  On 13 March 1990, the separation authority approved the applicant's discharge and directed he be furnished a General Discharge Certificate.  On 6 April 1990, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms that he was discharged in accordance with chapter 9 of Army Regulation 635-20 with an Under Honorable Conditions character of service by reason of "Drug Abuse-Rehabilitation Failure."  This form also shows that the applicant had completed 6 years, 11 months, and 11 days of creditable military service.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was enrolled in an ADAPCP three times and failed to comply with treatment plans and goals, continued to abuse alcohol, and was determined to be a rehabilitative failure.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

2.  There is no evidence in the applicant's records that his command sergeant major singled him out for punishment.  The applicant's separation packet shows that the applicant admitted to understanding the basis for his discharge.  He declined military counsel and elected not to submit a statement in his own behalf. This clearly shows that the applicant was aware of the basis for his discharge and did not contest it at the time.

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 the aforementioned requirement.  In view of the foregoing, there is no basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jcr___  __jgh___  __qas___  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.




							Jeffrey C. Redmann
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070011347
SUFFIX

RECON

DATE BOARDED
20071213
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19900406
DISCHARGE AUTHORITY
AR 635-200, Chap 9
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.