MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 March 2002
         DOCKET NUMBER: AR2002066461


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyi		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, reconsideration of his request to change the narrative reason for his separation and his reentry (RE) code.

APPLICANT STATES: In effect, the Board previously found that he failed to provide evidence showing an error or injustice in his separation processing. He now wishes to submit further proof of the injustice against him. He claims that no evidence existed to support his being declared a rehabilitation failure in the Army Drug and Alcohol Prevention Control Program (ADAPCP). He states that he admitted the misuse of a government credit card, but not the amount alleged on alcohol. Although, he still contends that others who had committed the same offense received only verbal counseling, and were given the opportunity to repay the credit card account, he was singled out to be used as an example. He contends that soldiers are referred to the ADAPCP for alcohol related incidents and he did not have any type of incident related to alcohol use in his unit or with military or civilian police before entering the program. In support of his application, he provides documents and statements from individuals he claims were members of his unit and that were directly involved with his separation process. He concludes by requesting that further consideration be given to his request for a hearing.

The applicant states that his issue is that he was placed in the ADAPCP and his discharge was initiated under the provisions of chapter 9, Army Regulation
635-200, as an ADAPCP rehabilitation failure without a full review of the documentation involved and that his unit commander initiated separation without supporting evidence. His separation documents indicate that his separation was initiated at the recommendation of the ADAPCP staff based on his failing to meet program requirements. However, when his commander initiated his separation, he had met all the ADAPCP requirements. He provides a statement from his ADAPCP counselor, which provides the regulatory requirements for declaring a soldier a rehabilitation failure from the ADAPCP.

The applicant further claims that while he was enrolled in the ADAPCP he never missed a meeting, never used alcohol or drugs, and was never involved in an alcohol related incident with civilian or military police. He claims that he attended all Alcoholics Anonymous (AA) meetings that were held three days a week as scheduled and he also attended a meeting held on 8 January 1996, which his ADAPCP counselor can attest to.

The applicant states that the charges that he failed the ADAPCP are groundless and that the records show he attended all meetings as required through 8 January 1996. At that time he was informed by his ADAPCP counselor that he needed to see his unit commander and on 9 January 1996, he was informed by his unit commander that he would be processed out of the Army for noncompliance with the ADAPCP.

The applicant further comments that there was no evidence to support this decision by his unit commander, and that his ADAPCP counselor’s records contain no derogatory remarks or give any indication that he was in any way noncompliant with the requirements of the ADAPCP. He goes on to indicate that his records contain no disciplinary history or negative incidents during his military career, and the documentation of the ADAPCP staff does not support his unit commander’s decision to separate him. He states that his unit commander’s decision was based more on the credit card misuse incident as opposed to it being based on his not meeting the requirements of the ADAPCP. He indicates that during this timeframe there was a concerted effort on the Army’s part to deter soldier’s from using alcohol. Further, he contends that his discharge processing was a result of this effort, rather than being based on the result of disciplinary incidents or abuse of alcohol. He states that the incident that resulted in his discharge processing was an isolated incident of alcohol consumption and his alcohol intake was limited. As a result of this incident, he was singled out to be used as a lesson to others and he was placed in the ADAPCP as a result.

The applicant claims that his unit commander informed the ADAPCP staff that he had run up a bill of $1,700 on a government credit card for the purchase of alcohol, which resulted in his referral to the ADAPCP. This allegation from his unit commander was false, as is shown in documentation he attaches and in a statement from his ADAPCP counselor. He concludes that his credit card purchase of alcohol was not based on his addiction to alcohol and hardly supports a conclusion that he was on a drinking binge, as he shared the alcohol purchases in question with other members of his unit.

The applicant states that he was informed in October 1996, that he would be referred to the ADAPCP for screening. In November, he was informed that he would be admitted to the program for alcohol abuse, and in reality, at that time he had only spent a total of $127.75 on alcohol. He contends this shows that he was only admitted to the ADAPCP as an example to others. He further comments that at no time did he neglect his job nor did he receive any disciplinary counseling for non-performance. In addition, he claims that it would have been more appropriate for his unit commander to counsel him on his credit card use and on the disadvantages of further drinking in order to set a good example and be a role model for others.

The applicant also encloses statements from a sergeant major and a personnel technician from his unit that support the fact that during this period other personnel had abused their government credit cards for alcohol purchases and consumption.

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Finally, the applicant contends that it was relayed to the ADAPCP staff that he had received nonjudicial punishment (NJP), which implied a previous disciplinary history, which was used as part of the ADAPCP staff’s evaluation. He also questions whether or not his unit commander actually reviewed his credit card purchases to ensure the accuracy of his allegation that he had purchased $1,700 worth of alcohol. He concludes by claiming that he never misused alcohol nor did he ever have a drinking problem. He never received NJP prior to being referred to the ADAPCP, and once enrolled in the program, he never failed to comply with its requirements.

NEW EVIDENCE OR INFORMATION:

Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 11 February 2000, in the enclosed Memorandum of Consideration identified as case number AR1999026696.

Additionally, on 3 December 2001, the applicant personally appeared before the Army Discharge Review Board (ADRB) with counsel. After hearing the testimony of the applicant and his counsel, the ADRB found that the applicant’s discharge was proper and equitable and denied his request for a change to the narrative reason for his separation and his RE code of RE-4.

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition. In addition, it contains no evidence of a disciplinary history prior to the incident that led to his discharge processing.

On 9 January 1996, the clinical director of the ADAPCP prepared a memorandum, Subject: Alcohol/Drug Rehabilitation Failure, in which it was stated that upon the recommendation of the ADAPCP counseling staff at a rehabilitation team meeting held on 9 January 1996, the unit commander declared the applicant a rehabilitation failure in the Track II treatment program. This memorandum also contained a recommendation that discharge action be initiated against the applicant within 60 days.

On 25 January 1996, a Patient Progress Report (PPR) was prepared by the unit commander and the ADAPCP clinical director. It confirmed that the applicant had been enrolled in the ADAPCP on 16 November 1995, and that the ADAPCP counselor evaluated his progress in the ADAPCP as poor. In addition, the unit commander’s assessment was that the applicant’s progress in the program was unsatisfactory. This PPR further contained the counselor’s recommendation that the applicant’s treatment be terminated and the unit commander’s appraisal of the applicant’s conduct in the program as unsatisfactory. The unit commander finally decided to terminate the applicant’s treatment and to process him for separation.
On 21 February 1996, the applicant’s unit commander notified the applicant that he intended to initiate separation action under the provisions of chapter 9, Army Regulation 635-200, based on his being declared a rehabilitation failure in the ADAPCP Track II treatment program. The reason cited for the action was that the applicant had been counseled and given a reasonable opportunity to take advantage of the ADAPCP treatment program. The unit commander also informed the applicant that he intended to recommend an honorable discharge.

On 27 February 1996, the applicant consulted legal counsel and after being advised of the basis for the contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights, the applicant completed a request for a conditional waiver. He waived consideration of his case by an administrative separation board contingent upon his receiving an honorable discharge. He acknowledged that he was making the request of his own free will and had not been subjected to coercion.

The appropriate separation authority approved the applicant’s conditional waiver request and directed that he be separated with an honorable characterization of service under the provisions of chapter 9, Army Regulation 635-200, by reason of Alcohol Rehabilitation Failure.

On 14 March 1996, the applicant was honorably discharged accordingly after completing a total of 8 years, 7 months, and 17 days of active military service. The separation document issued to and authenticated by the applicant with his signature on the date of his separation confirms that the authority for his separation was chapter 9, Army Regulation 635-200, the narrative reason for his discharge was Alcohol Rehabilitation Failure, and the reentry code he was assigned based on this authority and reason for his discharge was RE-4.

The applicant submits as new evidence a statement from his ADAPCP counselor, dated 8 August 2001, that explains the criteria for declaring a member a rehabilitation failure; and a hot mail note, dated 14 August 2001, in which the counselor indicates that when she looked at the applicant’s paperwork, she noted that he had spent $1,700 on bar bills, and that she did put into charts what commanders told her. She also indicated that she noted how well he was doing in keeping appointments, not drinking and going to AA meetings, so it could be concluded that the basis for his being declared a rehabilitation failure was the unit commander’s determined that he displayed a pattern of misconduct. Lacking a record of other disciplinary problems, she is not sure why he was declared a rehabilitation failure. Included with this statement were copies of ADAPCP treatment records.

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The applicant also provides a statement from a retired sergeant major, who states that he first met the applicant in 1994, and at his request the applicant was placed in his charge as a member of the honors section. He also comments that the applicant’s performance while in his charge was outstanding.

In addition, the applicant provided a statement form a retired sergeant first class, who was responsible for the credit card program. He comments that while reviewing accounts he noticed 5 or 6 cards that had charges that were not related to military business. He indicates that none of these soldiers faced disciplinary actions and only the applicant was enrolled in the ADAPCP. He concludes that as far as he knows, the applicant was always a professional soldier and his appearance and military bearing were outstanding.

The applicant provides a statement from another retired sergeant first class, who comments that during the timeframe, the Army was making a concerted effort to curb the use of alcohol within its ranks. He states that other members of the applicant’s platoon were involved in similar incidents as the applicant, but received no punishment. He concludes that it is his opinion that the applicant never abused alcohol, and this action was taken to present an example to others.

The applicant also provides a statement from a civilian personnel technician, who attests to the fact that during the applicant’s tenure of assignment to the unit, he never received any disciplinary action and he never saw the applicant involved in an alcohol related incident.

Finally, the applicant provides copies of the government credit card bills for the period August through November 1996. These bills contain a total of $2,388.30 in new charges and while the applicant highlights what he claims are bills applicable to his alcohol use, the listed charges are not specific enough to clearly establish what charges listed not highlighted by the applicant may have been related to alcohol purchases.

In addition, the applicant provides documents related to alcohol related screening he underwent at the rehabilitation center subsequent to his discharge on
12 March 2001, which confirm at that time he did not meet the criteria for abuse or dependence on alcohol. He also enclosed a copy of a letter from his county sheriff, dated 7 September 2001, confirming he has no criminal record in the county.

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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 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.

Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JPD was the appropriate code for the applicant based on the guidance provided in regulation for soldiers separating under the provisions of AR 635-200, Chapter 9, by reason of alcohol rehabilitation failure. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE-4 as the proper reentry code to assign to soldiers separated for this reason.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s contention the narrative reason for his separation and the corresponding RE-4 code were improper because he was not addicted to alcohol; and that, he met all the treatment requirements of the ADAPCP and should not have been declared a rehabilitation failure.

2. In addition, the Board carefully reviewed and considered the new evidence and documentation submitted by the applicant in support of his contentions. However, it finds none of these factors provide sufficient evidence to establish an evidentiary basis that supports changing its original denial decision in this case.

3. The record clearly shows that the applicant was entitled to have his case considered by an administrative separation board, a forum at which he could have presented his evidence to contest the basis for his being declared an ADAPCP rehabilitation failure and for his separation processing. However, he voluntarily elected to waive this entitlement and not to contest these actions at the time.

4. In the opinion of the Board, although the new evidence the applicant provides raises some questions in regard to his ADAPCP participation and the basis for his enrollment, this new evidence is presented solely from his point of view without the benefit of the perspectives of his unit commander and the ADAPCP clinical director, who made the joint decision to declare him an ADAPCP rehabilitation failure, which resulted in his being processed for separation.
5. The evidence of record confirms that the applicant was discharged under the provisions of chapter 9, Army Regulation 635-200, by reason of alcohol rehabilitation failure at the recommendation of the ADAPCP clinical director and staff. His separation was accomplished in accordance with the terms of his own conditional waiver request, which was contingent upon his receiving an honorable characterization of service.

6. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, it concludes that the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__FNE__ ___LE___ ___TL___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002066461
SUFFIX
RECON	1999/02/11
DATE BOARDED	2002/03/28
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1996/03/14
DISCHARGE AUTHORITY	AR 635-200 C9
DISCHARGE REASON	Alcohol Rehab Failure
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.