RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-01258

   					COUNSEL:  

		HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

1.  He be awarded sufficient constructive service credit (CSC) to obtain 20 years of active service, and be granted a full military retirement retroactive to the date of his separation.  

2.  In the alternative, he be granted an early pro-rated retirement retroactive to his date of separation.

3.  His narrative reason for separation on his DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to “Secretarial Authority.”


APPLICANT CONTENDS THAT:

The Air Force decision to separate him was callous and unjust.  In accordance with (IAW) AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program, “Commanders must provide sufficient incentive to encourage members to seek help for problems with alcohol without fear of negative consequences.”  While battling the stubborn disease of alcoholism, like 75 percent of Alcoholic Anonymous (AA) members, he relapsed during treatment and consumed alcohol while at home and off-duty.  For this private mistake, which did not affect his behavior or work product and did not result in any misconduct, he was unjustly separated after 19½ years of exceptional performance, including more than 14 years of overseas duty.  Specifically: 

	1.  The Air Force violated AFI 44-121 by improperly terminating him from the ADAPT program.  AFI 44-121 says the determination an airman is an ADAPT “program failure” my only be based on a “a repeated failure to meet and maintain Air Force standards (behavior) rather than solely on the use of alcohol” because “(a) return to drinking during treatment or aftercare is not uncommon and should not, in itself, be considered unsatisfactory progress.”  The Air Force clearly violated the regulation in this case by terminating the applicant from ADAPT “due to the fact that [he] went on pass and drank alcohol,” because he “continued to use alcohol,” and “due to his lack of follow through.”  He was terminated based solely on private alcohol use when he didn’t have any record of “repeated failure to meet and maintain Air Force standards.”  The National Institute of Health’s National Institute of Alcohol and Abuse and Alcoholism estimates 80 to 90 percent of people treated for alcoholism relapse while in treatment, as the applicant did.  He was prematurely and improperly terminated from the ADAPT program in violation of AFI 44-121 based solely on his relapse to use alcohol.  

		2.  He was never in a category of airman subject to discharge under AFI 36-3208 for “failure in alcohol rehabilitation” because he was in treatment for alcohol dependence, not abuse, and because he was able and willing to continue treatment.  In accordance with AFI 36-3208, an airman is only subject to discharge for failing an alcohol rehabilitation program if he was 1) ”in a program of treatment for alcohol abuse,” and 2) “failed to successfully complete that program due to inability, refusal to participate in the program, or unwillingness to cooperate.”  It also says “a diagnosis of alcohol abuse requires that the client not meet the criteria for alcohol dependence.”  The applicant was never in a program of treatment for alcohol abuse.  The distinction between abuse and dependence is crucial, not semantic, because alcohol dependence and alcohol abuse are separate diagnosis with very different DSM-IV criteria.  He entered treatment in Feb 03 with a diagnosis of alcohol dependency instead of the more severe diagnosed of alcohol abuse.  In every ADAPT progress report or treatment note, treatment providers had to circle either “alcohol abuse” or “alcohol dependence.”  Every one of the applicant’s providers circled alcohol dependence, not abuse, every single time.  The applicant failed ADAPT for “alcohol dependence—relapse” so he was not eligible for separation under AFI 36-3208.  AFI 44-121 further states a “return to drinking during treatment or after care is not uncommon and should not, in itself, be considered unsatisfactory progress.”  The Air Force therefore recognizes that relapse is not a personal or moral failing and that it does not demonstrate inability or unwillingness to continue in treatment, the rehabilitative process, or the military.  The Air Force improperly and unlawfully separated him without proper authority. 

	3.  His separation was a violation of AFI 36-3208 because he was discharged despite the fact he had clearly demonstrated potential for continued satisfactory service.  Even where an airman is properly determined to have failed the ADAPT program, AFI 36-3208 directs the Air Force to separate him only in the rare, limited circumstance where the evidence shows he “lacks the potential for continued military service” or requires transfer to a civilian medical facility for long term treatment.  Federal Courts have plainly stated that “alcoholism is a covered disability” under the American with Disabilities Act (ADA) which guarantees that employers may only “discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not ‘qualified’”.  Additionally, “an employer may not discipline an alcoholic employee more severely than it does other employees for the same performance or conduct.”  The Air Force never recorded a single substantiated allegation of misconduct against the applicant to justify his separation or the conclusion he lacked potential for continued military service.  In fact, there is not a single record, counseling statement, disciplinary action, or performance report substantiating any claim that alcohol affected his performance or conduct or credibly supported this separation action in any way.  Even when in rehab, his command remarked about his “outstanding” and “flawless performance,” and “excellent conduct on [and] off duty.”  His potential for continued military service is also corroborated by the simple fact that he actually continued to report to work and perform military duties without incident for an entire year after being terminated from the ADAPT program.  The applicant clearly demonstrated potential for continued military service after his termination from the ADAPT program.  The Air Force violated the regulation by separating this airman.

	4.  The discharge authority wrongly denied his request for Probation and Rehabilitation (P&R) when the evidence showed “good reasons to expect him to serve satisfactorily” until his estimated time of separation.  The Air Force P&R program for airmen subject to administrative discharge gives airmen an opportunity to stay in the Air Force and get help so they may be able to serve until their ETS (Expiration Term of Service).”  AFI 36-3208 states “P&R should be authorized if there are good reasons to expect the airman to serve satisfactorily.”  Additionally, it states “a separation authority who disapproves a recommendation of P&R must state the reasons for the decision.”  His record is simply silent and void of substantiated evidence that his private alcohol use affected his conduct, discipline, or performance.  His performance evaluations were truly exemplary for 19 years.  In Oct 03, while he was undergoing ADAPT treatment, his unit wrote “flawless performance” and “excellent military bearing [that] put [his command’s] best foot forward every time,” they called him “a top NCO in the making” who “stepped up to every challenge.”  A few short months later, the discharge authority stated the applicant “lack[ed] the capacity to be rehabilitated for further service,” using only boilerplate language providing no real actual reason or explanation.  Clearly, it was reasonably possible to retain him on duty until his fast-approaching ETS several months later.  The discharge authority appears to have discriminatorily separated him on the sole basis that he was and remained alcohol-dependent. 

	5.  The Air Force Personnel Council wrongly denied his request for a lengthy service probation in violation of his due process rights.  The Air Force gives airman who have served over 16 years on active duty an additional opportunity for P&R based on lengthy service.  AFI 36-3208 requires that commanders immediately notify airmen in writing of any new material evidence or allegations with an addendum to the original notification of separation letter “stat[ing] the substance of the new evidence or reasons for discharge.  The notification letter must tell the member again to consult legal counsel and that statements in rebuttal may be submitted.”  Although SAFPC directed he be notified of the allegations of misconduct occurring after he had submitted LSP request, his commander did not notify him.  He never received any addendum whatsoever and was never even aware that there were any misconduct allegations against him to rebut.  He was never given an opportunity to respond, and he first learned of this allegation in a response to a Freedom of Information Act (FOIA) request after his separation.  The Air Force Personnel Council apparently considered an uncontested hearsay report of misconduct which violated his due process rights and a suspended Article 15 from 1993, but no evidence relevant to a considered evaluation of his capacity to serve until his ETS.  His due process rights were not honored.  

In the matter of AFBCMR Docket Number BC-2000-00074, the Board granted a full retroactive retirement to an Airman with lengthy service who was previously denied probation and retirement on the basis of a misconduct discharge and criminal conviction for sexual battery and lewd and lascivious acts with a child.  Even under these ignominious circumstances, the Board wrote:  “We believe that denial of his retirement and the decision to administratively discharge him was particularly harsh under the circumstances...[W]e believe the injustice to the applicant’s family is perpetuated by allowing the single incident to overshadow their sacrifices and contributions to the nation…”  In the current case, with his untaken paid leave figured in, he was separated less than five months shy of full retirement when his records contained no substantiated evidence showing he was uncooperative or unwilling to be rehabilitated, or that his private consumption of alcohol at home impacted his conduct or duty performance.  

Finally, his application should not be considered untimely.  The shock and shame of the extremely harsh and sudden loss of his 19½ year military career led him into a deep depression and a downward spiral toward homelessness.  He did not have the emotional faculties or access to documentation to present a compelling case.  In recent years, he pieced his life back together and has remained healthy and sober.  

The applicant’s complete submission, with attachments, is at Exhibit A.





STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 29 Nov 85.

According to the SAF/MRBP Case Summary, dated 15 Dec 04:

	a.  While stationed at Lajes Field, Azores, Portugal, during the period 1 Jun 01 through 21 Dec 02, the applicant was entered into the ADAPT program.  His Life Skills provider diagnosed him as alcohol dependent and recommended he be entered into Level III, Intensive Inpatient Treatment, upon his PCS to Langley AFB, VA. 

	b.  On 28 Feb 03, the applicant was admitted to the Substance Abuse Rehabilitation Program (SARP) in Norfolk, VA. 

	c.  On 25 Mar 03, the SARP officials terminated the applicant’s participation in the SARP program because he drank alcohol while on a liberty pass one week before he was scheduled to complete the program.  For this, he received a Letter of Counseling (LOC). 

	d.  On 5 Aug 03, the applicant was referred back to the SARP for reentry into the program by his medical provider.  The Treatment Team (TT) did not believe he was “appropriate” for reentry, but recommended he complete Alcoholics Anonymous’ (AA) 90 days/90 meetings program and return to aftercare.  At some point after the 4 Nov 03 TT meeting, the applicant stopped attending aftercare group meetings.  Upon returning from leave during the period 1 Dec 03 through 5 Jan 04, the applicant claimed he had completed the AA program, then later denied that claim and explained he was not given an appointment slip.  In an individual session with the ADAPT providers he first reported he had a “slip” while on leave and drank alcohol three times.  He denied any other use of alcohol in that session, and during each of four ensuing group sessions.  After the ADAPT clinic was notified the applicant had shown up for work with the smell of alcohol on his breath, he disclosed he had been lying about drinking since Nov 03.  He drank “a lot” more while home on leave than he had previously reported.  

On 24 Apr 04, the applicant’s commander notified the applicant he was recommending him for an involuntary separation due to his failure in alcohol abuse treatment pursuant to AFI 36-3208.  The reason for taking this action was the applicant’s demonstrated pattern of unacceptable behavior and unwillingness to comply with treatment recommendations.  The separation action was reviewed and determined to be legally sufficient.  

On 29 Apr 04, after consulting with legal counsel, the applicant offered to conditionally waive his right to a Board Hearing if he received an Honorable discharge, and requested his case be forwarded to the Secretary of the Air Force SECAF for Lengthy Service Probation (LSP) consideration.  

On 26 May 04, the applicant’s separation authority accepted the conditional waiver and directed his involuntary separation with an honorable discharge without Probation and Rehabilitation (P&R), and subsequently recommended against a LSP.  

On 7 Sep 04, after formally requesting LSP, the applicant was involved in another alcohol-related incident.  According to his unit, he returned to work from a break with bloodshot eyes and the strong smell of alcohol on his breath.  Because he was assigned to customer service duty, his supervisor determined he was unfit for work.  For this, he received a Letter of Reprimand (LOR).  

On 17 Nov 04, after SAFPC requested the applicant’s commander notify him that SAFPC would be considering the newest alcohol related incident during their deliberations of his request for a LSP, the commander made said notification.  

On 24 Nov 04, the applicant’s response to the SAFPC notification was to claim he had not been drinking at work, but the alcohol in his system and on his breath was due to his drinking from the night before.  

On 27 Dec 04, SAFPC, on behalf of the SecAF, directed the applicant be discharged, and denied his request for an LSP.  SAFPC summarized, “Although cognizant that the applicant has 19 years of otherwise faithful service, the Counsel does not believe his continuation on active duty is warranted.  The applicant has had failures in SARP and ADAPT, and even after submitting a request for LSP and knowing that the request was pending before the Secretariat, continued to drink and show for work unfit for duty—despite the fact he asserted in his original LSP application that he would refrain from consuming alcohol.  Additionally, the Council was unpersuaded by his claim that the alcohol on his breath was a result of his drinking the previous night because it was not until 1330 that day he was discovered with bloodshot eyes and alcohol on his breath.  The Council believes that through his actions he has not shown he deserve LSP.”

On 11 Apr 05, the applicant was furnished an honorable discharge, with a narrative reason for separation of “alcohol rehabilitation failure,” and was credited with 19 years, 4 months, and 13 days of active service.   

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibit C, D, E, and H.    

AIR FORCE EVALUATIONS:

AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice concerning his separation program designator (SPD) code, narrative reason for discharge, or character of service.  The discharge authority approved the separation and directed an Honorable discharge without probation or rehabilitation.  SAFPC directed the administrative discharge be executed.  AFI 36-3208 states that discharges for failure in alcohol abuse treatment may only be characterized as Honorable or General (Under Honorable Conditions).  His discharge was consistent with the procedural and substantive requirements of the discharge instruction and within the discretion of the discharge authority.  Therefore, the applicant’s SPD code, narrative reason for separation, and character of service are correct.  

A complete copy of the AFPC/DPSOR evaluation is at Exhibit C.

AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice concerning his request for a military retirement.  In order to qualify for retirement, Title 10 United States Code (USC) §8914 requires that an enlisted member of the Air Force have at least 20 years of total active federal military service (TAFMS).  On 31 Mar 05, the SecAF directed the applicant be discharged and denied LSP which would have allowed the applicant to complete 20 years of TAFMS.  Therefore, the applicant had insufficient TAFMS to qualify for retirement.  

A complete copy of the AFPC/DPSOR evaluation is at Exhibit D.

SAF/MRBP recommends denial indicating there is no evidence of an error or an injustice.  There was no injustice in SAFPC’s previous decision to deny the applicant LSP.  The discharge was appropriate given the member’s record.  Concur with AFPC/DPSOR’s advisories, which recommend disapproval of full or pro-rated retirement and a change to the applicant’s narrative reason for separation. 

A complete copy of the SAF/MRBP evaluation is at Exhibit E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The boilerplate opinions provided in the Air Force advisories do not represent a meaningfully considered assessment of the evidence on record regarding the propriety or equity of the applicant’s discharge after 19½ years of active service.  The advisories flat-out ignore dozens of pages of evidence and the legal arguments submitted showing demonstrable error and injustice.  The level of perfunctory, hurried review is immediately apparent in the AFPD/DPSOR advisory opinion in which the author flippantly recommends the applicant’s requested relief—constructive service credit toward a military retirement—be denied on the sole basis that he was discharged by the Air Force before reaching his 20th year in service.  A meaningful recommendation about whether he merits a corrective change to his military record must do more than recite and rubber stamp actions already taken and mistakes already made. 

Regulations and policy explicitly distinguish “alcohol abuse” from “alcohol dependence and/or alcoholism,” and at the time of his discharge they only permitted separation of service members who failed in a treatment program for alcohol abuse for the precise and logical reason that only the abusers’ alcohol use had an adverse effect on the Department of Defense or affected the service member’s workplace conduct and potential.  He was never diagnosed with alcohol abuse and thus was not subject to discharge.  Per Air Force policy and regulation, he could not be separated for privately consuming alcohol or failing alcohol dependence treatment.  AFI 44-121 states “A diagnosis of alcohol abuse requires that the client not meet the criteria for alcohol dependence,” meaning those two diagnoses are mutually exclusive.  Further, AFI 36-3208 states alcohol abusing airmen who fail a program of treatment for alcohol abuse because of their inability to comply with treatment are subject to discharge if they also “lack the potential for continued military service.”  Therefore, even if he had failed ADAPT, there was no basis for discharge under AFI 36-3208 because he demonstrated clear potential for continued military service.  The Air Force advisories and SAFPC never gave any reasoned, non-boiler plate, explanation of why he lacked service potential apart from his ADAPT program failure for alcohol dependence.  His record shows his service was truly exemplary throughout his career, during and after his involvement with ADAPT.   


ADDITIONAL AIR FORCE EVALUATION:

AFMOA/SGH recommends denial indicating there is no evidence of an error or an injustice.  This applicant was not filed in a timely manner.  Medical documents of the applicant’s initial Substance Abuse Disorder (SUD) referral for Level III treatment are not included in the applicant’s package, and are no longer available for review.  They were destroyed after 5 years in accordance with the applicable Air Force Records Disposition Schedule.  

The available administrative and medical documents provided indicate the applicant’s dependency on alcohol spanned from 1986 through 2004.  The applicant had as history of Alcohol Related Misconduct (ARM) noted in 1986 when he received a suspended bust for public intoxication, and again in 1993 when he received an Article 15 for driving under the influence (DUI).  The applicant contends, through counsel, that he entered the treatment program on 28 Feb 03 with a diagnosis of “alcohol dependence” instead of the more severe diagnosis of “alcohol abuse.”  The counsel’s statement is incorrect, which reduces the credibility of the entire argument.  From a medical perspective, alcohol dependence is the more severe diagnosis.  It is extremely important for anyone with an alcohol dependence diagnosis to not drink again.  Some people with an alcohol abuse diagnosis may be able to drink after treatment, if they are not dependent on alcohol.  The severity of the applicant’s diagnosis indicated he should not drink at all in the future.  Medical documents provided indicate the applicant was removed from the ADAPT Program after one month.  The reasons for termination from the program were, “drinking while in the program, poor compliance, poor insight, poor motivation, lack of commitment, and lack of honesty.”  In accordance with AFI 44-121, Section 3.16 (Attachment 3), these reasons are sufficient for terminating the applicant from the program.  Further, his continued alcohol abuse rendered him outside military standards of behavior.  IAW AFI 36-2618, The Air Force Enlisted Structure, an non-commissioned officer (NCO) “must uphold Air Force policies, traditions, and standards.  The NCO should, by word and example, epitomize the Air Force as a profession and a way of life for military and civilian communities.”  The applicant did not promote the military readiness standard the health care providers were working to assist him with.  Per a medical note, dated 28 Apr 03, the applicant asked the Staff Psychiatrist for a “change in his diagnosis in order to alleviate admin repercussions, stating he recognized the problems, but drank anyway.”  The applicant was aware his actions had an impact on this military career.  The ADAPT provider team was within their rights to terminate him from the program as he failed the requirements to remain in the program.  Per AFI 44-121, “Initiate administrative actions against Service members who refuse to participate in counseling or refuse to enter or successfully participate in an alcohol treatment and/or rehabilitation program for alcohol abuse.”  The decision to remove the applicant from treatment was appropriate.  

A complete copy of the AFMOA/SGH evaluation, with attachments, is at Exhibit H.


APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

Through counsel, the applicant rebuts the recommendations made in the Air Force advisories.  He points out the 5 May (sic) advisory makes reference to the applicant’s ADAPT records, and emphasizes that the applicant is requesting changes to his military personnel and separation records, and not specifically his ADAPT record.  In addition, he reiterates his main contentions that he was being treated for alcohol dependency and not alcohol abuse, that alcohol abuse is a severer diagnosis than alcohol dependence, and that Air Force regulations do not permit an airman to be separated for relapsing into private alcohol use unless the substance use becomes substance abuse involving adverse effects on the Department of Defense.  He takes great exception to the referencing of alcohol related incidents from early in the applicant’s career, and concludes with a series of eight questions and answers which he requests the Board to consider (Exhibit J). 


FINDINGS AND CONCLUSIONS OF THE BOARD:

After careful consideration of applicant’s request and the available evidence of record, we find the application untimely.  Applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction    36-2603.  Applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits.  Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner.  


THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.


The following members of the Board considered AFBCMR Docket Number BC-2014-01258 in Executive Session on 11 Jun 15 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member



The following documentary evidence pertaining AFBCMR Docket Number BC-2014-01258 was considered:

	Exhibit A.  DD Form 149, dated 21 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOR, dated 10 Apr 14.
Exhibit D.  Memorandum, AFPC/DPSOR, dated 11 Jul 14.
Exhibit E.  Memorandum, SAF/MRBP, dated 21 Oct 14.
Exhibit F.  Letter, SAF/MRBR, dated 30 Oct 14.
Exhibit G.  Letter, Applicant, undated.
Exhibit H.  Memorandum, AFMOA/SGH, dated 27 Apr 15, w/atchs. 
Exhibit I.  Letter, SAF/MRBR, dated 5 May 15.
Exhibit J.  Letter, Applicant, dated 2 Jun 15.