MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 January 2003
         DOCKET NUMBER: AR2002071134

         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Marla J. N. Troup		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, that he be reinstated on active duty with all due back pay and allowances and that his reentry (RE) code be changed to 1.

APPLICANT STATES: That he willingly self-referred to Track III at Eisenhower Medical Center and completed the training. However, three incidents -- twice being late for physical training formations and one missed Sunday Alcoholic Anonymous meeting -- caused him not to be able to commence. Upon returning to his unit from the rehabilitation center, his first sergeant and company commander apparently felt as if he failed the program and attempted to discharge him on a chapter 9 (drug or alcohol rehabilitation failure). His Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) counselor verified that he did not meet the criteria established in chapter 9 of Army Regulation 635-200 for alcohol rehabilitation failure.

The applicant further states that he felt he was treated unfairly when he admitted his drinking addiction and sought help on his own. His chain of command did not take into consideration that he had not had a drink since 17 August 2000, which was before he even went into rehabilitation. He never had an alcohol-related incident in his entire life. That proves the program worked for him and gave him a new pattern of life with tools necessary to ignore drinking.

The applicant states that his commander flagged him on 16 October 2000, which kept him from reenlisting. His commander had him escorted up until the date of his expiration term of service (ETS) on 24 February 2001 and only lifted the flag to allow him to clear, thus forfeiting any entitlement to separation pay. This also kept him from seeking advice from the Staff Judge Advocate or reenlistment.

As supporting evidence the applicant provided:

1. A 10 April 2001 memorandum from the Fort Benning, GA ADAPCP Clinical Director.

         2. A 6 March 2002 3-page letter to Command Sergeant Major B___.

         3. A 23 February 2001 3-page (but incomplete) memorandum for record (MFR) apparently from his company commander and a 2-page rebuttal to the MFR dated 23 July 2001.

         4. A memorandum dated 6 November 2000 from his senior defense counsel to his chain of command advising that the chapter 9 packet did not accurately reflect all of the possible medical conditions the applicant had.

         5. A Report of Mental Status Evaluation dated 15 February 2001.

        6. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 7 August 1986 through 23 February 2001.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the Regular Army on 7 August 1986. He last reenlisted on 25 February 1999 for 2 years. He was promoted to Staff Sergeant, E-6 on 1 May 1999.

Apparently around August or September 2000, the applicant referred himself to the ADAPCP for alcohol rehabilitation. (The 23 February 2001 MFR indicates he was escorted to the ADAPCP clinic for self-referral after he missed a formation, was subsequently discovered in his room, and admitting to having consumed a liter of gin the night before.)

The 23 February 2001 MFR indicates the company commander initiated separation action under the provisions of Army Regulation 635-200, chapter 9 after a rehabilitation team determined the applicant was a rehabilitation failure. The separation packet was completed in late October 2000. However, the applicant's counsel advised that the applicant needed a complete mental evaluation. This apparently was completed on 31 October 2000. The examining officer apparently stated that the applicant's compliance with treatment was poor and cleared him for any administrative action including separation.

The February 2001 MFR further indicates that the applicant's counsel then advised that the applicant needed a CT scan and a complete Gulf War Syndrome screening. (This is confirmed by the 6 November 2000 memorandum from the applicant's counsel.) A CT scan was apparently completed on 16 November 2000 and no abnormalities were found. The MFR states that the applicant was dropped from the Gulf War Screening Program because of his failure to keep scheduled appointments. The applicant's counsel then stated that the applicant needed aggressive psychiatric treatment. On 12 December 2000, the commander received a letter from the Mental Health Directorate informing him to "put on hold" the applicant's separation packet.

On 15 February 2001, the applicant received an extensive mental status evaluation. He was diagnosed with depressive disorder, not otherwise specified; alcohol dependence, by history; cognitive disorder, not otherwise specified; and personality disorder, not otherwise specified. The Chief, Out-Patient Psychiatry noted that the applicant had some memory deficits; however, the deficit was of insufficient severity and pervasiveness to account for related difficulties. Moreover, it was of insufficient severity to warrant presentation to the Medical Evaluation Board.

The 23 February 2001 MFR continues by stating the commander received the applicant's final mental evaluation on 15 February 2001. The commander then resumed the chapter 9 packet for the applicant's failure at Track III treatment. However, during the applicant's many delaying actions, his ETS was fast approaching. He informed the applicant that he was not eligible to reenlist because he had a chapter action pending and was thus flagged.

The 10 April 2001 memorandum from the Fort Benning, GA ADAPCP Clinical Director indicates the applicant was declared a rehabilitation failure in the beginning of his treatment effort (but later the rehabilitation failure status was voided and he successfully completed the program).

On 23 February 2001, the applicant was honorably discharged upon his ETS after completing 14 years, 6 months, and 17 days of creditable active service. He was given an RE code of 3.

The applicant rebutted the 23 February 2001 MFR after he was separated. One of his comments was that the Chief, Out-Patient Psychiatry informed his commander that the applicant was not being considered for a chapter 9 separation. He also commented that his commander was told by the ADAPCP counselor that he was not considered a program failure.

The applicant enlisted in the Army National Guard on an unknown date.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 provides for the discharge of members based on alcohol or other drug abuse such as the illegal, wrongful or improper use of any controlled substance, alcohol or other drug when the soldier is enrolled in ADAPCP and the commander, in consultation with the rehabilitation team, determines that further rehabilitation efforts are not practical, rendering the soldier a rehabilitative failure. The regulation does not specify a time limit that must be met between the date the soldier is declared a rehabilitation failure and the date the separation packet is initiated.

Army Regulation 600-85 prescribes policies and procedures needed to implement the ADAPCP. In pertinent part, it states that a soldier may be discharged based on alcohol or other drug abuse when the member is enrolled in the ADAPCP and the commander determines that further rehabilitation efforts are not practical, rendering the soldier a rehabilitation failure. This determination will be made in consultation with the rehabilitation team. The regulation does not specify a time limit that must be met between the date the soldier is declared a rehabilitation failure and the date the separation packet is initiated.

Army Regulation 600-8-2 prescribes policies governing the suspension of favorable personnel actions as a function. It states that a field-initiated elimination requires a non-transferable flag. The flag will be removed when the soldier is reassigned to a transition point. A flag prohibits reenlistment or extension.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-3 applies to persons not qualified for continued Army service but the disqualification is waivable.

In the processing of this case, an advisory opinion was obtained from the Clinical Director, Army Substance Abuse Program (ASAP, formerly ADAPCP). The Director stated that the applicant was properly declared a rehabilitation failure by his commander in a rehabilitation team meeting (RTM) on 6 October 2001. The failure was voided because the memorandum in which his agency informs the commander of his/her having declared a soldier a rehabilitation failure states, "It is requested that actions (separation) be initiated within 60 days from the date of this letter. If such actions are not initiated, another RTM will be necessary in order to clinically evaluate his potential for further military service." After 60 days, the agency informed the commander that the applicant's compliance with the treatment plans, to include sustained abstinence from alcohol use, no longer warranted his being declared a rehabilitation failure.

A copy of the advisory opinion was provided to the applicant for comment. He did not respond within the given time frame.

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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. Although the decision to declare a soldier an alcohol or drug abuse rehabilitation failure must be made in consultation with the rehabilitation team, the decision rests with the commander. The ADAPCP/ASAP Clinical Director acknowledged in the advisory opinion that the applicant had been properly declared a rehabilitation failure by his commander in an RTM on 6 October 2000.
3. Despite the Fort Benning ADAPCP's memorandum to the applicant's commander requesting that separation action be initiated within 60 days from the date of the memorandum, there is no regulatory time limit that must be met between the date the soldier is declared a rehabilitation failure and the date the separation packet is initiated. Moreover, the applicant's commander met the requirement of the memorandum. The memorandum requested initiation within 60 days. The applicant was declared a rehabilitation failure on 6 October 2000; the 6 November 2000 memorandum from the applicant's counsel confirms that the chapter 9 packet had been initiated within that 60-day period.

4. In light of the 23 February 2001 MFR, it appears that the subsequent determination that the applicant no longer warranted being declared a rehabilitation failure was not made by the commander. Therefore, the determination was invalid.

5. It is not clear how the applicant's being flagged prevented him from seeking legal advice or information from his reenlistment counselor. The evidence shows that he had counsel from the Trial Defense Service.

6. Since the applicant's chapter 9 packet was still being processed at the time he separated, he was still properly flagged, and therefore barred from reenlistment, and the reentry code of 3 was properly given.

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

__RVO__ __AAO _ __MJNT__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071134
SUFFIX
RECON
DATE BOARDED	2003/01/16
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.03
2.	100.03
3.
4.
5.
6.