RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070001180 


	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. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn

Member

Mr. Michael J. Flynn

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the reason for his honorable discharge be changed.

2.  The applicant states, in effect, that he was unjustly discharged for an alcohol or drug problem when, in fact, he had a seizure disorder.  He also states, in effect, that there were times when his Dilantin levels would rise and make him toxic, so he would have his medications lowered until a safe level of Dilantin was achieved.  The applicant further states, in effect, that he was put in a position by his company commander and first sergeant where he did not have a lawyer to represent him and was asked to sign discharge papers or be put out of the Army with a dishonorable discharge.  He adds, in effect, that he has attempted to contact Lieutenant Colonel R________, his former battalion commander, or Doctor (Major) Ronald P_______, who was (at the time) Chief of Neurology at Landstuhl, Germany, but he has been unable to locate them.  He concludes by stating he has tried for 27 years to establish a service-connection for his seizure disability and he has medical information to backup his claim. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 31 March 1980; DA Form 3349 (Medical Condition – Physical Profile Record), dated 4 December 1979; Medical Record, Progress Notes, dated 11 January 2007; Office of the Governor, Topeka, Kansas, letter, dated 20 December 2005; American Red Cross, Katrina Relief 2005, Certificate of Appreciation with accompanying American Red Cross letter, undated; American Red Cross, Hurricane Season 2005 Disaster Relief, Certificate of Appreciation with accompanying American Red Cross letter, undated; North American Mission Board and Kansas-Nebraska Convention of Southern Baptists, 2005 Hurricane Season, Certificate of Appreciation; letter from Pastor Jason P________, undated; Allen County Community College, Associate in Applied Science Degree, Iola, Kansas, dated 14 May 1994; Official Transcript, Allen County Community College, dated 29 March 2004; 2 Kansas Fish and Game, Pratt, Kansas, letters, dated 17 February 1983 and 18 March 1983; Kansas, Safe Hunter, Hunter Ethics Award Certificate, dated 7 July 1983; American Correctional Association, Correctional Officers Correspondence Course, Certificate of Completion, dated January 1985; American Correctional Association, College Park, Maryland, letter, dated 23 February 1985; The Back Center, Degree of Master in Back Care Certificate, dated 26 April 1991; National Technology Transfer, Inc., Controls Division, Troubleshooting Motor Controls, Certificate of Completion, dated 21 September 1995; Power Space, OSHA Electrical Safety, Certificate of Completion, dated October 1997; Forklift Annual Retraining Certificate, dated 15 October 1998; Kansas Bureau of Investigation, Juvenile Information System, Certificate of Attendance, dated 20 October 1983; Kansas Bureau of Investigation, Incident-Based Reporting, Certificate of Attendance, dated 15 March 1985; Bourbon County Sheriff’s Department, Crime Scene Investigation, Training Certificate, dated 10 April 1984; Sheriff’s Department, Allen County Courthouse, Iola, Kansas, letter, dated 20 May 1984; Allen County Sheriff’s Department, Kansas Sheriff’s Association, Certificate of Training, dated 16 September 1983; Allen County Sheriff’s Department, Reserve Training, Certificate of Training, dated 12 September 1985; 4 PC Boards Inc., Certificates of Completion for Basic Principles for a Collaborative Workplace, dated 2 May 1996; Solving Problems: The Basic Process, dated 14 May 1996; Quality: Through the Eyes of the Customer, dated 28 May 1996; and Giving and Receiving Constructive Feedback, dated 13 June 1996; Iola Police Department and Allen County Sheriff’s Department, Certificate of Completion, dated 18 May 2006; and Office of Kansas Attorney General, Approved Concealed Carry Handgun Training Course, Certificate of Completion, dated 20 July 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 March 1980, the date of his discharge from the Army.  The application submitted in this case is dated 18 January 2007.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 3 February 1977, the applicant enlisted in the Army National Guard (ARNG) for a period of 6 years.  The applicant was ordered to active duty for training on 27 February 1977 and, upon successful completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  On 16 July 1977, the applicant was honorably released from active duty training to return to his ARNG unit in Oklahoma.


4.  The applicant’s military service records contain a copy of State of Oklahoma, Military Department, Oklahoma City, Oklahoma, Orders 255-10, dated
21 December 1978.  These orders show that the applicant was issued a General Discharge (under honorable conditions), effective 22 January 1979, for his failure to participate in the ARNG.

5.  The applicant’s military service records contain a copy of Headquarters, Fifth U.S. Army, Fort Sam Houston, Texas, Orders 233-394, dated 4 December 1978. These orders show that the applicant was involuntarily ordered to active duty for a period of 19 months and 10 days with a reporting date of 23 January 1979 to the U.S. Army Reception Station, Fort Leonard Wood, Missouri.  The applicant was subsequently reassigned overseas to Germany where he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 68th Armor.

6.  The applicant's military service records contain a copy of a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 9 March 1979.  This document shows, in pertinent part, the applicant had been drinking heavily according to witnesses when he fell over a chair, was caught and never hit anything, but became unresponsive.  This document also shows the applicant was brought to the health clinic via ambulance and that the applicant denied any knowledge of seizure behavior.

7.  The applicant's military service records contain a DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Military Client Intake and Follow-Up Record), dated 13 April 1979.  This document shows, in pertinent part, that the applicant was a self/voluntary referral to a non-resident rehabilitation program.

8.  The applicant's military service records contain a DA Form 4465, dated
2 June 1979.  This document shows, in pertinent part, that the applicant was in a follow-up program on duty that consisted of scheduled non-resident counseling, command consultation, group counseling/therapy, and individual counseling/ therapy rehabilitation methods.

9.  The applicant's military service records contain a copy of a SF 600, dated
24 September 1979, that shows, in pertinent part, the applicant was brought via ambulance to the emergency room at Baumholder Health Clinic for epilepsy.  This document also shows that he was taking Phenobarbital for his medical condition.


10.  The applicant's military service records contain a copy of a DA Form 3349 (Medical Condition – Physical Profile Record), dated 4 December 1979.  This document shows, in pertinent part, that the applicant was issued a permanent profile for a seizure disorder and was returned to his unit with limited duty.

11.  The applicant's military service records contain a copy of an ADAPCP Progress Report, dated 16 January 1980.  This document contains the counselor’s recommendation that the applicant be declared an ADAPCP failure, along with his observation that the applicant had shown virtually no desire to control his use of alcohol, a problem complicated by his drinking while under heavy medication for a medical disorder.  This document also shows that the commander declared the applicant a ADAPCP rehabilitation failure.

12.  The applicant's military service records contain a SF 88 (Report of Medical Examination), dated 25 February 1980, prepared upon medical examination of the applicant for the purpose of his separation from active duty under the provisions of Chapter 9.  Item 74 (Summary of Defects and Diagnoses) shows, in pertinent part, that the physician annotated “Seizure Disorder – Dilantin 100 mg.” Item 75 (Recommendations - Further Specialist Examinations Indicated) shows that the physician recommended the applicant follow-up at a Veterans Affairs Hospital for his seizure disorder.

13.  On 7 March 1980, the first lieutenant serving as commander of Headquarters and Headquarters Company, 2nd Battalion, 68th Armor (Germany), notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 9, with an honorable discharge.  The reasons for his proposed action were based on the applicant showing no desire to control his use of alcohol, complicating the problem by drinking alcohol even though he had a medical disorder that was affected by alcohol; and his display of belligerent, violent behavior and involvement in numerous incidents while under the influence of alcohol.

14.  On 7 March 1980, the applicant acknowledged receipt of the notification of separation action under the provisions of Army Regulation 635-200, Chapter 9.  The applicant also acknowledged that military legal counsel for consultation was available to assist him.  The applicant indicated he did not desire that military legal counsel for consultation be appointed to assist him and elected not to submit statements in his behalf for consideration.  The applicant signed the notification and acknowledgement on 7 March 1980 at 1430 hours.


15.  The Commander, Headquarters and Headquarters Company, 2nd Battalion, 68th Armor (Germany), subsequently recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 9, with an honorable discharge.  The reasons for his proposed action were based on the applicant having been determined to be an ADAPCP rehabilitation failure; a lack of desire to control his use of alcohol, complicating the problem by drinking alcohol even though he had a medical disorder that was affected by alcohol; and his display of belligerent, violent behavior and involvement in numerous incidents while under the influence of alcohol.

16.  On 13 March 1980, the lieutenant colonel in command of Headquarters,
2nd Battalion, 68th Armor (Germany), approved the applicant’s separation from the U.S. Army under the provisions of Chapter 9 of Army Regulation 635-200. The battalion commander also recommended that the applicant be furnished an Honorable Discharge Certificate.

17.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was honorably discharged on 31 March 1980 in accordance with the provisions of Chapter 9 of Army Regulation 635-200.  Item 26 (Separation Code) contains the entry, “JPB” and Item 28 (Narrative Reason for Separation) contains the entry, “ALCOHOL OR OTHER DRUG ABUSE.”  The DD Form 214 also shows that, at the time of his discharge, the applicant had completed 1 year, 2 months, and 8 days net active service; 4 months and
20 days prior active service; and 1 year and 7 months prior inactive service.

18.  On 1 November 1982, the applicant applied to the Army Discharge Review Board (ADRB) for a change to his discharge based on the fact that he is not an alcoholic or drug abuser.  On 7 September 1984, the ADRB determined that the applicant’s discharge was both proper and equitable.

19.  In support of his application, the applicant provides documentation attesting to his volunteer efforts in support of natural disasters and completion of post-secondary civilian education, workplace-related training programs, and law enforcement training seminars from 1983 to the present.  These documents, in pertinent part, attest to the applicant's personal commitment to helping others and his continuing pursuit of educational and training opportunities.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) of this Army regulation provides that discharge is 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 member is enrolled in an Alcohol and Drug Abuse Prevention and Control Program and the commander determines that further rehabilitation efforts are not practical, rendering the member a rehabilitation failure.  This determination will be made in consultation with the rehabilitation team.  The service of members discharged under this section will be characterized as honorable or under honorable conditions.  This document also provides that the authority for separation will be included in directives or orders directing members to report to the appropriate Separation Transfer Point.

21.  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. 
It identifies the SPD code of “JPB” as the appropriate code to assign to enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, Chapter 9, based on alcohol or other drug abuse rehabilitation failure. 

22.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in, or aggravated by, active military service.  However, the VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  In addition, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  Furthermore, the Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

23.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the reason for his honorable discharge should be changed because he was unjustly discharged for an alcohol or drug problem when, in fact, he had a seizure disorder that was manifested when his medication was lowered to a safe level.  The applicant also contends, in effect, that his company commander and first sergeant threatened him with a dishonorable discharge and he did not have a lawyer to represent him at the time of his separation processing.  The applicant further contends, in effect, that he has tried for 27 years to obtain a service-connected disability for his seizure disorder, but without success.

2.  The evidence of record shows the applicant’s seizure disorder is documented in his military service records.  The evidence of record also shows that the applicant was involved in numerous alcohol-related incidents during the period of service under review.  The evidence of record further shows that the applicant was declared an ADAPCP rehabilitation failure based on the fact that he demonstrated no desire to control his use of alcohol, a problem that was complicated by his drinking while under heavy medication for his medical disorder; this despite having received rehabilitative counseling/therapy for his alcohol problem.

3.  The evidence of record shows that the applicant's commander notified him that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), with an honorable discharge.  The evidence of record also shows that the applicant was advised that if he wished to rebut the reasons for the proposed separation action that he should submit statements in his behalf and they would be considered by the discharge authority.  The evidence of record further shows that, if requested, legal counsel would be made available to assist him in the preparation of his comments.

4.  The evidence of record shows that the applicant declined military legal counsel for consultation to assist him and elected not to submit statements in his behalf for consideration.  There is no evidence of record, and the applicant fails to provide any probative evidence, that he was told he would receive a dishonorable discharge.  Therefore, the evidence of record fails to substantiate the applicant's claim that he would receive a dishonorable discharge, if he did not accept a discharge under the provisions of Chapter 9, Army Regulation 635-200.

5.  A review of the applicant's discharge by the ADRB determined that his discharge was both proper and equitable as to characterization.  Accordingly, the ADRB determined that a change in the reason for separation was not appropriate and denied the applicant’s request.

6.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Thus, the applicant’s honorable discharge under the provisions of Chapter 9 of Army Regulation 635-200 for alcohol or other drug abuse rehabilitation failure was administratively correct and in compliance with applicable regulations.  Therefore, the applicant is not entitled to a change in the authority and reason for his discharge.

7.  The evidence of record shows that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  The evidence of record also shows that the applicant was prescribed medication for his seizure disorder, issued a permanent profile for a seizure disorder, and returned to his unit with limited duty.  The evidence of record further shows that the applicant disregarded both his medical condition and the medical advice given to him by drinking alcohol while under medication for his medical disorder.  Thus, the applicant was properly discharged based on being an ADAPCP rehabilitation failure.  Therefore, he is not entitled to correction of his records to show he was discharged based upon a physical disability.

8.  The evidence of record shows that the VA provides compensation for disabilities which it determines were incurred in, or aggravated by, active military service and which impair the individual’s industrial or social functioning.  Thus, the applicant is advised that the VA, in its discretion, may award the applicant a disability rating; however, it is also noted, that this is a prerogative exercised within the policies of that agency.

9.  The applicant's post-service achievements, personal commitment, and service to the community since his discharge were carefully considered.  The applicant’s good post-service conduct and achievements are commendable and indicate he is now an active and responsible citizen of the community.  However, the applicant’s post-service conduct is not a basis for changing the authority or reason for his discharge from the U.S. Army.
10.  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.

11.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 7 September 1984.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 6 September 1987.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JTM__  ___RJO_  ___MJF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____   John T. Meixell_____
          CHAIRPERSON


INDEX

CASE ID
AR20070001180
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/19
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19800331
DISCHARGE AUTHORITY
AR 635-200, Chapter 9
DISCHARGE REASON
Alcohol or Other Drug Abuse
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.