IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20110001778 


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 correction of the narrative reason for his separation.

2.  The applicant states he never received any type of substance treatment.

3.  The applicant provides a certificate of completion of a civilian substance abuse treatment program.

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 he enlisted in the Regular Army on 30 October 1979 and held military occupational specialties 35L (Avionic Communications Equipment Repairer) and 37C (Wire Systems Installer/Operator).

3.  He served through multiple reenlistments or extensions in a variety of stateside and/or overseas assignments, including Germany, from April 1982 to September 1984, and attained the rank/grade of sergeant (SGT)/E-5.

4.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, Good Conduct Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

5.  On 11 November 1986, the Fort Campbell Provost Marshal suspended the applicant's driving privileges effective 12 October 1986 after the applicant was arrested for driving while intoxicated (DWI).

6.  Subsequent to this DWI charge, the applicant was referred for enrollment in the Army Drug and Alcohol Prevention Control Program (ADAPCP).  He attended the 3-day Short-Term Outpatient Program (STOP) sessions, but he denied having a problem with alcohol and declined further ADAPCP services.

7.  On 9 December 1986, his immediate commander initiated a Bar to Reenlistment Certificate against him citing personal behavior that brought discredit upon his unit and the Army (he was pending charges for DWI from incidents occurring on 5 July and 12 October 1986).  He was provided with a copy of this bar, but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by his battalion commander.

8.  On 15 December 1986, the Fort Campbell ADAPCP Clinical Director submitted a clinical evaluation regarding the applicant.

	a.  The applicant was first enrolled in the Fort Campbell ADAPCP on 29 July 1986 as a result of DWI charges.  He attended the 3-day STOP from 29 to 31 July 1986 and he was released from the program on 2 September 1986 after having successfully completed it.

	b.  He was again enrolled in STOP on 21 October 1986 after a second DWI on 21 October 1986.  He attended STOP to satisfy court requirements, but he still denied having a problem with alcohol and he refused the Track II 90-day extended care program when it was offered.  He failed to show up for his follow-up appointment and he was released from the program with a recommendation for retention.

9.  On 13 January 1987, his bar to reenlistment was reviewed and he was not recommended for further service.

10.  On 10 March 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice disobeying a lawful order.

11.  On 7 April 1987 subsequent to notifying him, the applicant's battalion commander ordered the applicant's reduction from specialist four/E-4 to private first class (PFC)/E-3 effective 7 April 1987 due to misconduct.

12.  On 16 April 1987, he was notified of the requirement to appear in the Criminal Court of Montgomery County, Clarksville, TN, on 26 May 1987 for his DWI charges.

13.  On 18 May 1987, he accepted NJP under the provisions of Article 15 of the UCMJ for violating a general regulation.

14.  On 26 May 1987, his bar to reenlistment was again reviewed and he was again not recommended for further service.

15.  On 27 May 1987, he received a second notice of a dishonored check at the Fort Campbell Exchange.

16.  Also on 27 May 1987, he pled guilty and was convicted by a civilian court for the charge of DWI.  The court sentenced him to 11 months and 29 days of confinement.

17.  On 9 June 1987, the applicant received a general officer letter of reprimand for driving under the influence [of alcohol].  He was afforded the opportunity to submit matters on his own behalf, but he elected not to do so.

18.  On 12 June 1987 subsequent to notifying him, the applicant's battalion commander ordered the applicant's reduction from PFC/E-3 to private (PV2)/E-2 effective 27 May 1987 due to misconduct.

19.  On 5 August 1987, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to misconduct for commission of a serious offense with an under honorable conditions (general) discharge.  The commander cited the applicant's two DWI offenses.

20.  On 5 August 1987, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised that the basis for the contemplated separation action was misconduct and of the type of discharge he could receive and its effect on further enlistment or reenlistment.  He was also advised of the possible effects of this discharge and of the procedures/rights available to him.  The applicant waived consideration of his case by an administrative separation board contingent upon receiving a general discharge and elected not to submit a statement in his own behalf.

21.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a discharge under conditions other than honorable were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

22.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 for misconduct for commission of a serious offense.  The immediate commander recommended that the applicant be issued a general discharge under honorable conditions.

23.  On 21 September 1987, consistent with the chain of command's recommendations and a legal review for sufficiency, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct for commission of a serious offense.  He directed that the applicant's service be characterized as under honorable conditions.  Accordingly, the applicant was discharged on 25 September 1987.

24.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a character of service of under honorable conditions (general) by reason of misconduct for commission of a serious offense.  His DD Form 214 further shows he completed a total of 7 years, 10 months, and 26 days of creditable active service.  Additionally, this form shows in:

* item 25 (Separation Authority) – "PARAGRAPH 14-12C, ARMY REGULATION 635-200"
* item 26 (Separation Code) – "JKQ"
* item 28 (Narrative Reason for Separation) – "MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE"

25.  He submitted a certificate, dated 21 January 2011, which shows he completed a 21-day residential substance abuse treatment program.

26.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.  

27.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKQ" SPD code is the correct code for Soldiers separating under paragraph 14-12c of Army Regulation 635-200 by reason of misconduct for commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a series of serious offenses culminating in two instances of DWI.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct for commission of a serious offense.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  Contrary to his contention that he never received any type of substance treatment, the evidence of record shows:

	a.  He was first enrolled in the Fort Campbell ADAPCP on 29 July 1986 as a result of his DWI charges.  He attended the 3-day STOP from 29 to 31 July 1986 and he was released from the program on 2 September 1986 after having successfully completed it.

	b.  He was again enrolled in STOP on 21 October 1986 after a second DWI on 21 October 1986.  He attended STOP to satisfy court requirements, but he still denied having a problem with alcohol and he refused the Track II 90-day extended care program when it was offered.  He failed to show up for his follow-up appointment and he was released from the program with a recommendation for retention.

3.  His narrative reason for separation was assigned based on his discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct for commission of a serious offense.  Absent the serious offense(s), there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his serious offenses.  The only valid narrative reason for separation permitted under that paragraph is "misconduct – commission of a serious offense" and the appropriate SPD code associated with this discharge is "JKQ" which are correctly shown on his DD Form 214.

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 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)                                         AR20110001778



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ABCMR Record of Proceedings (cont)                                         AR20110001778



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