IN THE CASE OF:	  

		BOARD DATE:  14 August 2012

		DOCKET NUMBER:  AR20120002638 


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 two separate applications, correction of his
DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his separation authority and narrative reason for separation as Army Regulation
635-200, chapter 6 (hardship) instead of chapter 9 (alcohol abuse – rehabilitation failure).  He also requests correction of the date of entry shown his DD Form 214 from 13 October 1987 to 24 August 1987.

2.  The applicant states:

* at the time of his discharge, he was told he was receiving a hardship discharge as his 7-week old daughter had just passed away
* his wife was very young and she was overly distraught 
* he has been denied benefits for years not knowing that it was because of receiving a chapter 9 discharge instead of the proper chapter 6 discharge
* his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows his enlistment date as 24 August 1987
* although item 18 (Remarks) of his DD Form 214 shows 24 August 1987, he has been denied benefits for over 20 years because it is not shown in item 12a (Date Entered AD This Period)
* it was not until he physically took all of his documentation to a Department of Veterans Affairs (VA) specialist that he was granted medical benefits
* he pointed out the errors at the time he signed his DD Form 214
* 
he was instructed to sign the form and he was told the corrections would be sent to the New Jersey VA, which obviously never happened

3.  The applicant provides:

* Self-authored letter, dated 30 January 2012
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 30 January 2012
* Metroplex Hospital Birth Certificate, dated 13 June 1989
* Certificate of Death, dated 4 October 1989
* Excerpts from Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 6
* DD Form 214
* DD Form 4
* Honorable Discharge Certificate, dated 7 September 1989

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 DD Form 4 shows he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 24 August 1987 for a period of
8 years.  On 12 October 1987, he was discharged from the USAR DEP and he enlisted in the Regular Army (RA) on 13 October 1987 for a period of 5 years.  He completed training as a metal worker and he was awarded military occupational specialty 44B.

3.  The available record shows the applicant entered the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 16 August 1988.

4.  The applicant provides a copy of his daughter's Birth Certificate showing she was born on 13 June 1989.

5.  On 24 July 1989, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, paragraph 9-2.  The specific reason for the proposed separation action was the applicant was declared a rehabilitative failure by his commander in consultation with the ADAPCP rehabilitation team.  The applicant acknowledged receipt of the notification on the same date.

6.  Having consulted with counsel and being advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-200, chapter 9, paragraph 9-2, and the rights available to him, he elected not to submit a statement in his own behalf.

7.  The applicant provides a copy of his daughter's Certificate of Death that shows she died on 18 August 1989.  Cause of death was sudden infant death syndrome (SIDS).

8.  On 30 August 1989, the appropriate separation authority approved the applicant's recommendation for discharge under the provisions of Army Regulation 635-200, chapter 9 and directed the issuance of an Honorable Discharge Certificate.  On 7 September 1989, the applicant was discharged accordingly due to alcohol abuse – rehabilitation failure.  He completed 1 year, 10 months, and 25 days of creditable active service.

8.  Item 12a on his DD Form 214 shows he entered on active duty on 13 October 1987.  Item 18 contains the entry "Item 12e:  Delayed Entry Program (DEP):  870824-871012//Nothing follows."

9.  There is no evidence the applicant petitioned the Army Discharge Review Board for a change of his separation authority and narrative reason for separation within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse.  A member who has been referred to the 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.  Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation.  

Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.

	b.  Paragraph 6-3 states Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  It states in item 12a enter the beginning date of the continuous period of active duty (emphasis added) for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  There is no evidence in the available record that shows the applicant was unaware of the separation authority and narrative reason for separation he was receiving at the time of his discharge.  Evidence shows that having received legal counsel and being advised of the basis for his contemplated separation action and its effects and the rights available to him, he signed the acknowledgement and elected not to submit a statement in his own behalf.

3.  There is no evidence that he ever applied for and was approved for a hardship discharge.  The evidence shows he was recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, due to alcohol abuse – rehabilitation failure.  This information is properly shown on his DD Form 214 as the separation authority and narrative reason for separation.

4.  The applicant initially enlisted in the USAR DEP on 24 August 1987.  He was not on active duty until he enlisted in the RA on 13 October 1987.  According to the applicable regulation, the beginning date of the continuous period of active 

duty will be entered in item 12a of the DD Form 214.  Therefore, his date of entry on active duty on his DD Form 214 is correct.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120002638



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ABCMR Record of Proceedings (cont)                                         AR20120002638



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