IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110001679 


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 item 28 (Narrative Reason for Separation) of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.  

2.  The applicant states he was not allowed a waiver authorized under the governing regulation.  When he went to discuss this issue with counsel he was informed all Judge Advocate General (JAG) personnel had deployed.  

3.  The applicant provides his DD Form 214 and conditional waiver request 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 record shows he served in the Regular Army (RA) from 
24 May 1976 through 23 March 1979, at which time he was honorably separated by reason of expiration of term of service.  It further shows on 28 October 1993, he again enlisted in the RA in the rank of specialist four (SP4), and this is the highest rank he attained and served in while on active duty.  He was trained in and awarded military occupational specialty (MOS) 91B (Medical Specialist). 

3.  The applicant's record shows that during the active duty period under review, he earned the National Defense Service Medal, Army Service Ribbon, Southwest Asia Service Medal, and Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.  

4.  On 27 July 1995, the applicant was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  On 7 August 1995, he was enrolled in the ADAPCP out-patient program, based on alcohol related problems.    

5.  On 6 September 1995, an ADAPCP counselor recommended that the applicant be released from the program based on his lack of motivation to get involved in the treatment program.  The rehabilitation team elected to keep the applicant in the rehabilitation program for 6 to 8 sessions to allow him the opportunity to gain some insight about his abuse of alcohol and to develop a solid plan of action that would give him the best chance at not having future alcohol-related problems.  

6.  On 8 November 1995, the Clinical Director notified the applicant's chain of command that the applicant was declared an ADAPCP rehabilitation failure due to failure to follow through with his treatment plan and lack of motivation to follow treatment recommendations.  

7.  On 2 January 1996, the unit commander notified the applicant that action was being initiated to separate him under the provisions of chapter 9, Army Regulation 635-200, due to alcohol rehabilitation failure, with a general discharge (GD).  The unit commander cited the applicant's continued use of alcohol and unwillingness to follow treatment recommendations as the bases for taking the separation action. 

8.  On 10 January 1996, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him and the effect of a waiver of those rights.  Subsequent to receiving legal counsel the applicant elected to submit a request for a conditional waiver of his right to an administrative separation board contingent on him receiving an honorable discharge (HD).   
9.  On 27 January 1996, the separation authority approved the applicant’s discharge under the provisions of chapter 9, Army Regulation 635-200 and directed that he be issued an HD under the terms of his conditional waiver.  On 
1 March 1996, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of SP4/E-4, and he had completed a total of 6 years, 
1 month, and 24 days of active military service.  Item 28 of the DD form 214 he was issued lists the narrative reason for separation as “Alcohol Rehabilitation Failure.”

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.   

11.  Army Regulation 635-200 (Personnel Separations) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his narrative reason for separation should be changed based on his inability to discuss his conditional waiver with legal counsel has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the applicant's unit commander notified him of the intent to separate him only after the ADAPCP Clinical Director and his staff concluded the applicant was a rehabilitation failure.  It further confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The record further confirms after the applicant was fully advised of the basis for the contemplated separation action and its effects and of the rights available to him by legal counsel and only after receiving this legal counsel, he voluntarily submitted a conditional waiver of his right to an administrative separation board contingent on receiving an HD.  The record also confirms he was separated under the terms of his conditional waiver request.  Absent any evidence of record or independent evidence provided by the applicant that shows an error or injustice related to his separation processing, there is an insufficient evidentiary basis to support granting the requested relief. 

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)                                         AR20110001679



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ABCMR Record of Proceedings (cont)                                         AR20110001679



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