PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            30 January 2001
	DOCKET NUMBER:   AR2000035643 

	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.  

	Ms. Antoinette Farley		Analyst	
	Mr. Carl W. S. Chun		Director	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Brenda F. Hirschi		Member	
	Mr. Thomas E. O’Shaughnessy		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 his general discharge (GD) under honorable conditions be upgraded to an honorable discharge.

3.  The applicant states, in effect, that he had a series of problems during his first enlistment, which may have caused him attitude problems during his second enlistment.  His problems during his first enlistment concerned promotions, denial of transfer to a new unit after he was found not guilty by a special court-martial and an illegal suspension of favorable personnel actions.  When he returned to Germany during is second enlistment, he got back into his old habits and abused alcohol.  He is currently having problems in his civil-service position in Germany concerning an erroneous entry in his security records, at the Fort Belvoir “Crime Center” which shows that he was convicted by a court-martial and given a bad conduct discharge while he was on active duty in 1984.  He further states that he received at least one Good Conduct Medal while on active duty in 1985.  

4.  The applicant’s military records show that prior to the period of enlistment under review, he entered the Regular Army for a period of 3 years on 10 March 1983.  He completed basic training at Fort Dix, New Jersey and his advanced training in military occupational specialty (MOS) 52D10 (Power Generator Equipment Repairer) at Fort Belvoir, Virginia, in July 1983.  He was then transferred to Fort Benning, Georgia for airborne training.  On 26 August 1983, he was assigned to duty in Germany.  He returned to the United States on 
28 February 1985, and was assigned to Fort Bragg, North Carolina for duty.  On 
21 January 1986, he was honorably discharged in, pay grade E-4 in order to reenlist.  He was credited with 2 years, 8 months and 12 days of active service for this period of service.  He had no recorded indisciplines or lost time during this period of enlistment.  His awards and decorations included: the Army Service Ribbon; the Good Conduct Medal; the Overseas Service Ribbon; the Sharpshooter Badge, (Rifle) and the Parachutist Badge.

5.  On 22 January 1986, he reenlisted in the Regular Army for 3 years.  On 5 June 1986, he was reassigned back to Germany for duty in his MOS.

6.  On 18 May 1987, he received a summarized nonjudical punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his place of duty on 17 April 1987.  His punishment included 7 days of extra duty. 

7.  On 18 June 1987, the applicant was enrolled in the Army Drug and Alcohol Prevention Control Program (ADAPCP) after an alcohol related incident. 

8.  On 18 August 1987, the applicant accepted NJP for operating a vehicle while drunk and for wrongfully using marijuana in the hashish form on 6 July 1987.  His punishment included reduction to pay grade E-2, to forfeit $172.00 pay per month for 2 months, (suspended until 18 February 1988) and to perform 45 days extra duty.  

9.  On 9 September 1987, he was transferred to Track III for inpatient medical treatment for drug and alcohol abuse.  He was discharged before completion of the program on 16 October 1987 for reasons unknown.

10.  On 14 December 1987, he was issued a letter of reprimand (LOR) by the Commander, Nuremberg Military Community (a brigadier general).  This letter cited an instance of operating a motor vehicle with a blood alcohol content test of 
1.2 mg/lm and wrongfully using marijuana in the hashish form on 6 July 1987.  The applicant acknowledged receipt of the LOR and elected not to make a statement. The commander directed that the LOR be filed in his Official Military Personnel File (OPMF).

11.  On 13 June 1988, the ADAPCP Rehabilitation Team recommended that the applicant be declared an ADAPCP rehabilitation failure due to his early discharge from the Track III program and more recently missing five group counseling sessions at the community counseling center.

12.  On 26 July 1988, a physical examination and a mental evaluation found the applicant to be qualified for separation.

13.  On 17 August 1988, the unit commander concurred in the ADAPCP Rehabilitation Team’s recommendation and the applicant was declared a rehabilitation failure.  The commander cited the applicant’s failure to comply with treatment plans and goals as evidenced by continued use/abuse of both cannabis and alcohol.

14.  On 22 August 1988, the unit commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, chapter 9 for Alcohol and Drug Rehabilitation Failure with the recommendation that he be discharged with a GD. 

15.  The applicant consulted with legal counsel and was advised of the impact of the discharge action.  He waived personal appearance, consideration, and representation by counsel before a board of officers and submitted a statement in his own behalf.

16.  On an unknown date the separation authority approved his separation and directed the issuance of a GD.

17.  On 5 October 1988, the applicant was discharged under the provisions of 
AR 635-200, paragraph 9-5, for alcohol abuse-rehabilitation failure with a GD.  He had completed 2 years, 8 months and 14 days of creditable service for this second period of service and he had no recorded lost time. 

18.  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 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.  At the time of the applicant's separation, an honorable or a general discharge was authorized.  However, an honorable discharge was required if restricted use information was used.  Further, the regulation then in effect stated that no individual would be given a GD by the separation authority unless the commander initiating the action for separation recommended it and the soldier had the opportunity to receive legal counsel.

19.  The applicant made application to the Army Discharge Review Board (ADRB) seeking a change in the characterization of the discharge.  On 26 April 2000, the ADRB denied his request finding the discharge process to be proper and equitable.

20.  The Department of Veterans Affairs (VA), in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA or the Service Department determines that the early discharge amounted to a completed and unconditional separation from the service.

CONCLUSIONS:

1.  The applicant’s administrative separations were accomplished in accordance with applicable laws and regulations in effect on the dates of his separation.

2.  The overall quality of the applicant’s last period of service does not warrant an upgrade of the GD he received on 5 October 1988.  

3.  However, it appears that he should be considered as having been issued a complete and unconditional separation for the honorable period of service from 10 May 1983 through 21 January 1986.  This period of service was fully satisfactory. He had no indisciplines, lost time and served 2 years, 8 months and 12 days of his first enlistment and earned the Good Conduct Medal.  He also was advanced to pay grade E-4 during his first enlistment.

4.  Therefore, the circumstances of the applicant’s GD on 5 October 1988, have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service ending on 21 January 1986.

5.  There is no evidence of record that he was ever tried and/or acquitted by a special court-martial in Germany on 6 April 1984.  Further, there is no evidence of record that he was ever tried or convicted by a general court-martial and/or issued a bad conduct discharge while on active duty.  However, this Board is not investigative in nature, nor has the applicant provided any evidence of errors in his security files.  The applicant must first exhaust his administrative remedies by appealing any improper documents in his security files to the Fort Belvoir “Crime Center.”  A copy of these proceedings may be helpful in such an appeal. 

6.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was eligible for a complete and unconditional separation from the military at the time of his honorable discharge on 21 January 1986.  

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

BOARD VOTE:  

__aao__  __bfh__  _teo__  GRANT AS STATED IN RECOMMENDATION

_______  _______  _____  GRANT FORMAL HEARING

_______  _______  _____  DENY APPLICATION

		     Arthur A. Omartian        
		        CHAIRPERSON

INDEX

CASE ID	AR2000035643	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19881005	
DISCHARGE AUTHORITY	AR635-200, CH 9 	
DISCHARGE REASON	A	
BOARD DECISION		
REVIEW AUTHORITY	Director	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.