IN THE CASE OF:	  

		BOARD DATE:	       27 October 2009

		DOCKET NUMBER:  AR20090009541 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a change to item 25 (Separation Authority), item 26 (Separation Code), and item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, he believes that he was unjustly discharged under the rules of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 9 for alcohol rehabilitation failure.  He has worked in several secret military positions as a civilian since 1991 through 2006 in Germany, England, Latvia, Croatia, Albania, Djibouti, Kuwait, and Iraq.  Since his departure from the military he has not had any alcohol-related incidents.  He also states that before his alcohol-related incidents he was going through some stressful times.  He had buried his stepfather and he was reprimanded for returning late from his burial (one day).  The time difference between America and Germany is 7 hours.  Because of his state of mind, due to his stepfather’s death who raised him from the age of 6 years, he miscalculated his return trip.  After he was reprimanded and threatened with an Article 15 he had two alcohol- related incidents.  With the second reprimand he lost his rank and pay.

3.  The applicant further states that although he was given a chapter 9, he continued to do his job with his top secret clearance.  His company commander explained to him that his discharge would change over time to honorable and that it would not affect his military status.  Since he has served his nation with dignity and pride over the past 28 years, he feels it would only be right to change his separation authority and narrative reason for separation to chapter 4 for expiration of term of service (ETS). 
4.  In support of his application, he provides copies of his DD Forms 214 for the period ending 6 December 1986 and 6 October 1989; his Contractor Letters of Accreditation/Identification, dated 1 September 2004; his contractor travel memorandum, dated 21 June 2005; and his government contractor assignment letter, dated 11 May 2005.

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 military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 13 September 1979.  He was discharged from the USAR DEP on 8 October 1979 and he enlisted in the Regular Army (RA) in pay grade private (PV1)/E-1 on 9 October 1979.  He completed training and he was awarded military occupational specialty (MOS) 32D (Station Technical Controller).  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 December 1983.  He reenlisted on 7 September 1983 and he was honorably discharged on 6 December 1986 at his ETS.  

3.  The applicant again enlisted in the RA on 10 March 1987, for 3 years.  

4.  On 22 February 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for operating a vehicle while drunk on 9 January 1989.  His punishment included a reduction to the rank/grade of private first class (PFC)/E-3 and restriction for 30 days (both suspended for 90 days, to be automatically remitted if not vacated before 11 May 1989), a forfeiture of $175.00 pay per month for two months, and extra duty for 30 days.  He did not appeal the punishment.

5.  On 17 April 1989, the applicant’s company commander recommended he be issued a Memorandum of Reprimand for driving while intoxicated (DWI) on 9 January 1989.  On 25 April 1989, the applicant acknowledged receipt of the Memorandum of Reprimand and he elected to submit a letter of rebuttal.  His records do not contain a copy of his rebuttal.

6.  The applicant was counseled on 17 April; 2, 19, and 24 May; and 12 June 1989 for being drunk on duty, for having abused alcohol, for having been diagnosed with a personality disorder, for having his driving privileges suspended, for failing to make payments on time, and for violation of his restriction.

7.  A DA Form 3822-R (Report of Mental Health Status Evaluation), dated
20 April 1989, shows the applicant underwent an evaluation for a personality disorder.  The evaluating psychiatrist, an Army medical doctor, opined that the applicant’s behavior was normal, he was fully alert and fully oriented, his mood or affect was flat, his thinking process was clear, and his thought content was normal.  The evaluating psychiatrist also opined that the applicant had the mental capacity to understand and participate in discharge proceedings, was mentally responsible, and met retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He remarked that based on the applicant’s hospitalization on the psychiatry ward on 17 April 1989, his diagnoses were alcohol abuse and a personality disorder.  The evaluating psychiatrist further stated that the applicant’s condition and problems he presented were not, in his opinion, amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The evaluating psychiatrist cleared the applicant for any administrative action deemed appropriate by the command.

8.  On 25 April 1989, the applicant’s battalion commander directed the Memorandum of Reprimand be filed in the applicant’s Military Personnel Record Jacket (MPRJ).

9.  On 9 May 1989, the applicant accepted nonjudicial punishment under Article 15, UCMJ, for being found drunk while on duty on 17 April 1989.  His punishment included a forfeiture of 7 days pay for one month, a reduction to the rank/grade of private (PV2)/E-2 (suspended for 6 months), and 14 days restriction and extra duty.  He elected to appeal the punishment and submit additional matters.  His records do not contain any documentation relating to the applicant's appeal.  There is also no evidence of the final result of his appeal.  

10.  On 15 May 1989, the Clinical Director, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), Ludwigsburg-Kornwestheim Military 
Community, provided information regarding the rehabilitation activities of the 
applicant.  The ADAPCP official stated that the applicant had been referred following a 10 January 1989 DWI incident.  The applicant gave little indication of motivation for counseling services during the screening interview on 26 January 1989.  The applicant was enrolled in Track I during the Rehabilitation Team Meeting on 13 February 1989, at which time the success criteria were established as abstinence while enrolled and no further incident.  He completed 12 hours of Alcohol and Drug Awareness Education on 6 and 7 March 1989 with minimal to moderate involvement.  The case was closed as successful on
15 March 1989.  The applicant was referred again following a 17 April 1989 drunk on duty charge.  He provided preliminary demographic and behavioral information during the assessment interview on 12 May 1989 and walked out of the session in response to the counselor confronting the obvious alcohol problem.  The ADAPCP official stated that the applicant had met the failure criterion of having another alcohol-related incident.  He recommended the applicant be separated from the Army in accordance with Army Regulation
635-200, chapter 9, if other more appropriate separation authority did not apply.  

11.  On 13 June 1989, the applicant‘s company commander notified him of his intention to recommend him for discharge from the service under the provisions of Army Regulation 635-200, chapter 9, with an honorable discharge.  The commander stated that it had been determined that further rehabilitation efforts were not practical in the applicant’s case.

12.  On 13 June 1989, after consulting with counsel, the applicant requested consideration of his case by a board of officers with representation by counsel.

13.  On 6 September 1989, the applicant waived his rights to have his case considered by a board of officers continent upon his receiving an honorable discharge.  He elected not to submit a statement in his own behalf.  He stated that he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.

14.  On 8 September 1989, the appropriate separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 9, and issued an Honorable Discharge Certificate.

15.  The applicant was honorably discharged on 6 October 1989 in the rank/grade of PFC/E-3, under  the provisions of Army Regulation 635-200, chapter 9, by reason of alcohol abuse – rehabilitation failure.  He was credited 

with 2 years, 6 months, and 27 days of net active service this period.  Item 25 of his DD Form 214 shows “AR 635-200, Chapter 9,” Item 26 shows “JPD,” and Item 28 shows “Alcohol Abuse – Rehabilitation Failure.”

16.  The applicant submits documentation that shows, in effect, he served in a contractor position with the Department of the Army from 1 September 2004 through 22 January 2005 and from 18 March 2005 through 18 March 2006, in Kuwait.  The documentation also shows he served in a contractor position with the U.S. Marine Corps from 2 May 2005 to 12 May 2006, in support of Operation Iraqi Freedom.  

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 the Army's 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.

18.  Army Regulation 635-5-1 (Separation Documents), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators (SPD) to be used for these stated reasons.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a correction to item 25, item 26, or item 28 of his DD Form 214.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contentions have been noted; however, the evidence of record shows the applicant was placed in the ADAPCP following a DWI.  He completed 12 hours of the Alcohol and Drug Awareness Education with minimal to moderate involvement.  His case was successfully closed on 15 March 1989.  On 17 April 1989, the applicant was again referred to the ADAPCP after being charged with having been found drunk while on duty.  When confronted with the obvious alcohol problem, the applicant walked out of the session and he was declared having met the failure criterion of having another alcohol-related incident.  It was recommended he be separated under the provisions of Army Regulation
635-200, chapter 9.


3.  On 13 June 1989, the applicant’s company commander initiated action to discharge him from the military.  The company commander stated that it had been determined that further rehabilitation efforts for the applicant were not practical.  At first the applicant elected to have his case heard by a board of 
officers and later waived that right.  He was honorably discharged on 6 October 1989 under the provisions of Army Regulation 635-200, chapter 9.

4.  Contrary to the applicant’s contention that he was unjustly discharged under Army Regulation 635-200, chapter 9, the evidence shows he was twice punished under Article 15, UCMJ for alcohol-related incidents, twice placed in the ADAPCP, and acknowledged the reason for his separation.  Therefore, the evidence clearly shows he understood the reason for his discharge and the type of discharge that he would be receiving.  

6.  The evidence of record shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, for Alcohol Abuse - Rehabilitation Failure on 6 October 1989.  His 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 for that separation were appropriate considering all of the facts of the case.  The applicant has submitted neither probative evidence nor a convincing argument to show that he is now deserving of these corrections to his DD Form 214.

7.  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

___X____  ___X___  ___X____  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.



      ___________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090009541



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ABCMR Record of Proceedings (cont)                                         AR20090009541



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