PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 October 1999                   
	DOCKET NUMBER:   AR1999028557

	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.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that all derogatory information in her records be removed.  On 15 October 1999, she modified her application to request that her discharge be voided and she be reinstated.

3.  The applicant states that the information is over 7 years old.  The changes made by the Army Discharge Review Board (ADRB) should also be removed.  She should never have been enrolled in a rehabilitation program because all charges were thrown out.  Supporting evidence is as listed on the DD Form 149.

4.  The applicant's military records show that, after having had prior service in the U. S. Army Reserve, she enlisted in the Regular Army on 12 October 1988 for    4 years.  Prior to her discharge she had a “clean” record and had been promoted to Specialist, E-4 on 12 December 1989 with a time-in-grade waiver.  She had served in Southwest Asia from December 1990 to May 1991.

5.  On 1 October 1991, the applicant tested positive on a urinalysis test for THC (marijuana).  She denied any drug use. She stated that while on a recent visit to Holland she spent some time in cafes and night clubs where marijuana was being legally used by others and she may have inhaled enough second-hand smoke to cause her to test positive.  Apparently, her commander determined there was insufficient evidence to show she wrongfully used marijuana and decided not to administer non-judicial punishment.  

6.  On 14 January 1992, the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) by her commander in accordance with the recommendation of the Community Counseling Center (CCC).  She arrived 15 minutes late to one ADAPCP meeting (date unknown but possibly her first meeting).  (Her platoon sergeant had provided a statement that she was working very late on an important project, woke up late and arrived only 15 minutes late to the meeting.)  A Patient Progress Report dated 14 January 1992 signed by the Clinical Director of the CCC noted the applicant’s progress as poor and recommended termination of treatment and separation.  On 30 January 1992, the Clinical Director provided a synopsis of rehabilitation efforts to her commander.  The synopsis stated the applicant was referred to the CCC on         3 January 1992 due to a positive urinalysis; she was enrolled on 14 January 1992; enlisted personnel who have 3 or more years of military service and who are identified as illegal drug abusers will be processed for separation; and the information disclosed was taken from records whose confidentiality is protected by Federal law.  The synopsis did not specifically identify the applicant as a rehabilitation failure.

7.  The applicant’s commander initiated separation proceedings under the provisions of Army Regulation 635-200, Chapter 9 for drug abuse rehabilitation failure.

8.  On 2 July 1992, the applicant was discharged in pay grade E-4, with an honorable discharge, under the provisions of Army Regulation 635-200, Chapter 9, Drug Abuse Rehabilitation Failure.  She had completed 3 years, 8 months and 21 days of creditable active service and had no lost time.  She had been awarded the Army Good Conduct Medal, the Army Achievement Medal, and the Army Commendation Medal. 

9.  The applicant applied to the ADRB to change the narrative reason for discharge.  The ADRB granted relief, noting that the Clinical Director’s               30 January 1992 statement did not declare the applicant as a rehabilitation failure and the commander improperly initiated her separation as a drug rehabilitation failure.  The narrative reason for separation was changed to “Directed by the Secretary of the Army.”

10.  Army Regulation 600-85 prescibes policies needed to implement the ADAPCP.  In pertinent part, it states that when individuals are identified as possible alcohol or other drug abusers, their unit commander will refer them to the ADAPCP for initial screening.

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 when the soldier is enrolled in ADAPCP and the commander determines that further rehabilitation efforts are not practical, rendering the soldier a rehabilitation failure. A member who is enrolled in ADAPCP for alcohol or 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.

CONCLUSIONS:

1.  The Board concludes that an injustice exists in this case.  The applicant had no record of any disciplinary actions prior to this incident, with several awards and decorations to her credit, and had been promoted to E-4 with a time-in-grade waiver.  Although she tested positive on a urinalysis test for marijuana, her commander presumably determined there was insufficient evidence to show she wrongfully used marijuana since he decided not to administer non-judicial punishment.  However, he was required by regulation to refer her to the ADAPCP. 

2.  The applicant was enrolled in the ADAPCP on 14 January 1992.  On this date also the Clinical Director of the CCC prepared a Patient Progress Report, noting the applicant’s progress was poor and recommending termination of treatment and separation.  The Director’s 30 January 1992 memorandum, which ostensibly was to provide a synopsis of the applicant’s rehabilitation efforts to her commander, said absolutely nothing about rehabilitation efforts.  Even if the applicant was in need of rehabilitation, the Board concludes she was given no realistic opportunity to obtain that rehabilitation and agrees with the ADRB that she was improperly discharged.

3.  The applicant’s enlistment would not have expired until 11 October 1992 and the Board concludes that, but for her premature and improper discharge, she would have remained on active duty to complete that enlistment.  It therefore appears appropriate and proper to void her premature discharge, thus reviving her old enlistment contract, to show that she continued to serve under that enlistment, to grant her full active duty credit through her expiration term of service (ETS), and to issue her a new Honorable Discharge Certificate, effective the date of her scheduled ETS.

4.  It does not appear appropriate or proper to credit the applicant with active service beyond her scheduled ETS, or to now order her directly to active duty on the assumption that if qualified, she would have reenlisted at her ETS.  Reenlistment is a contract, the creation of which requires volitional acts by the applicant which did not occur and which should not be retroactively presumed.

5.  It would be appropriate, however, to give her the opportunity to apply for reenlistment under the applicable regulations.

6.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  voiding the ADRB-corrected discharge which was issued to the applicant on 31 December 1996 and by showing that she continued to serve on active duty until 11 October 1992, when she was separated from the service with an Honorable Discharge Certificate, by reason of her ETS, under the provisions of Chapter 4, Army Regulation 635-200, with a reentry code of 1; 

    b.  by returning to her all benefits and property she lost as the result of her discharge prior to her normal ETS; and

    c.  removing any impediments to the applicant’s reenlistment in the Regular Army in pay grade E-4, provided she is morally and physically qualified and makes application therefor within 120 days of official notification of this action by the Commander, Army Reserve Personnel Command.

2.  In accordance with Army Regulation 15-185, paragraph 21e, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal, to include the ADRB action, will be returned to the board for permanent filing.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__fkm___  __jhk___  __bje___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred K. McCoy
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999028557	
SUFFIX		
RECON		
DATE BOARDED	19991020	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.