RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070011404 


	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.


x

	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 narrative reason for his separation be changed from "Voluntary Early Retirement" to "Disability Retirement."

2.  The applicant states, in effect, that his severe alcoholism began during his service.  He received medical treatment, which included residential alcohol rehabilitation prior to his retirement.  The alcoholism itself, he states, was the major factor in his early retirement.  The condition has continued unabated, has led to divorce, and has rendered him unable to hold a job or live independently.  He has significant brain damage from repeated falls, a cirrhotic liver and other serious and permanent health problems.  His disability which long predates his separation from military service, is well documented in his service medical records and post-separation VA (Department of Veterans Affairs) medical records and should have properly resulted in a disability discharge.

3.  In support of his request, the applicant provides four envelopes which contain a record of comprehensive medical treatment he has received as follows:

	a.  Kirtland Air Force Base, Albuquerque, New Mexico - medical records detailing alcohol dependence, psychiatric care, head trauma, cognitive deficiencies, etc. [149 medical documents];

	b.  Canyon Ridge Hospital – medical records detailing involuntary psychiatric admission in July 2007 [6 medical documents];

	c.  Oasis Rehabilitation Center, Riverside County Mental Health – medical records which detail involuntary psychiatric hold in July 2007 [21 medical documents]; and

	d.  VA Medical Center, Albuquerque – detailing alcohol dependence, head trauma, psychiatric issues [122 medical documents], etc.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of 

justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was commissioned from the Reserve Officer Training Program on 8 June 1977.  He entered active duty in the Army on 22 October 1977.  He was integrated into the Regular Army on 2 August 1990 and was promoted to the rank of Major on 1 September 1989.

3.  The applicant continued to serve on active duty until 31 July 1995 when he was honorably separated for the purpose of retirement.  The DD Form 214
(Certificate of Release or Discharge from Active Duty) he was issued on his retirement date shows the authority for his separation to be:  "Army Regulation 635-100, Chapter 4."  The separation code entered in his DD Form 214 is, "RBE."  The narrative reason for his separation is shown to be:  "Voluntary Early Retirement."

4.  On the date of his retirement, the applicant had completed 17 years, 9 months, and 9 days net active service.

5.  A copy of the Memorandum, Subject:  Voluntary Early Retirement, the applicant submitted on 7 February 1995, is available in his service personnel records.  The applicant applied for retirement under the provisions of Army Regulation 635-100 and MILPER (Military Personnel) Message Number 94-252, Subject:  FY 95 Officer Early Retirement Program.  In his application for retirement, the applicant stated he had read Army Regulation 635-100, Chapter 4, Section V.  He acknowledged he was responsible for ensuring that a physical examination was competed not earlier than four months or later than one month prior to his approved retirement date.  He further acknowledged that he was aware that the purpose of the examination was to ensure that his medical records reflected as accurately as possible his state of health on retirement and to protect his interests and those of the Government.

6.  There is no evidence in the applicant's personnel records to show or to suggest that he had been referred for treatment for alcoholism or the effects therefrom while he served on active duty.  There is also no evidence in the applicant's personnel records to show he was assigned as a patient in a residential alcohol treatment facility while he served on active duty.

7.  There is no evidence in the available records to show the applicant had been referred to the Army's Physical Disability Evaluation System to undergo a medical evaluation board or a physical evaluation board prior to the date of his separation for the purpose of retirement.

8.  The applicant's service medical records are not available for review by the Board.  When the applicant's application for retirement was approved, a memorandum of instructions was distributed by the Officer Retirements and Separations Branch, US Total Army Personnel Command, Alexandria, Virginia, which the applicant was obligated to follow.  Among the instructions was an instruction that his health records (Medical and Dental); available clinical records, including current and past records accumulated for PEB (Physical Evaluation Board) action; a copy of his DD Form 214; a completed VA Form 21-526; and any other forms provided by a VA Contact Representative would be forwarded as a single packet to the appropriate Department of Veterans Affairs Regional Office or Veterans Affairs Hospital within five working days of his separation.

9.  Appendix A, to AR 635-5-1, Table B-1, shows separation code "RBE" which translates to, "Voluntary Early Retirement."

10.  Army Regulation 635-100 provides policies and provisions for the separation of officers from active duty.  Chapter 4 of this regulation establishes procedures for the implementation of laws and policies governing the retirement of officers, except for physical disability and retired pay for non-regular service.  Section V, Paragraph 4-36, of this regulation required the immediate commander to ensure that all officers undergoing retirement followed procedures pertaining to medical examinations as stated in Army Regulation 40-501.  Medical examinations prior to retirement were required.

11.  All medical documents submitted by the applicant in support of his request were reviewed.  Of the 298 documents which were reviewed, a few included comments about medical treatment and hospitalization that may have occurred while he served on active duty; however, in the absence of the applicant's service medical records, these reports cannot be corroborated.  The earliest dated document is dated 9 February 1998 and the last dated document is dated 25 July 2007.  All medical documents submitted to the Board for consideration were created post-service.

12.  The applicant reported he has significant brain damage from repeated falls, a cirrhotic liver and other serious and permanent health problems.  A discharge 
summary prepared at the Canyon Ridge Hospital, on 23 July 2007, shows, in the History of Present Illness section that he had a head trauma he sustained in a fall due to drinking about two years before.

13.  On 25 January 2002, the applicant was hospitalized for the effects of his alcoholism.  When he was being initially evaluated, he reported he had gone through a detoxification program in 1990 in Germany and afterwards had gone through a six-week residential program, also in Germany.  He stated he was able to remain sober for several months following this treatment episode.  He indicated this is the longest he had ever been sober in his entire life.  The applicant then denied he had ever been hospitalized as an adult.  He also denied he had ever been hospitalized for psychiatric reasons although he had sought out a psychiatrist following his divorce.

14.  The applicant was interviewed at the time he was hospitalized in October 2005.  In that interview, he reported in the Past Psychiatric History section of the Mental Health Consult that he had been drinking since he was 14 years of age.  He reported that his drinking had increased to drinking about 18 beers a day over the previous 1 to 2 years.  He stated he had been sober once in 1990 for two to three [measure of time not stated] when in Germany after being in an inpatient rehab.  He said he was sober for that period of time because the Army made him stay sober.

15.  The applicant underwent a psychiatric evaluation on 13 July 2007.  In the Psychiatric Treatment History section, he reported he had been hospitalized in a VA hospital in 1994; however, in 1994, he was serving overseas in Germany.  On the same date, the applicant underwent a Psychosocial / Drug and Alcohol Assessment.  To the question, "Have you ever been in drug / alcohol rehab?" the applicant answered, "Once while in service."  There are no medical records to corroborate his reported hospitalization and treatment.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence shows the applicant voluntarily submitted an application for early retirement, under the provisions of Army Regulation 635-100 and MILPER Message Number 94-252, Subject:  FY 95 Officer Early Retirement Program.  At the time of his retirement, he had completed 17 years, 9 months, and 9 days net active service.
3.  When the applicant's application for retirement was approved, a memorandum of instructions was distributed by the Officer Retirements and Separations Branch, US Total Army Personnel Command.  The applicant was obligated to undergo a retirement physical examination in accordance with Army Regulation 40-501.

4.  In the absence of the results of this physical examination, Government regularity must be presumed and it must be further assumed that the applicant was found medically qualified for separation for the purpose of retirement.

5.  The applicant's military personnel records are void of any medical treatment records to show he was ever diagnosed or treated for alcoholism or that he was sent to a residential treatment facility for the purposes of receiving medical treatment for alcoholism.  The applicant in his post-service visits to civilian and VA medical treatment facilities alluded to being hospitalized and to having undergone residential treatment for his alcoholism; however, these reports cannot be corroborated with the available records.

6.  There is no evidence in the available medical records to show or to suggest the applicant was referred to the Army's Physical Disability Evaluation System to undergo processing by a medical evaluation board or a physical evaluation board prior to the date of his separation for the purpose of retirement.

7.  The applicant’s service medical records are not available for the Board's review.  It is believed these records were sent to a VA Regional Office in accordance with the instruction that were given to the applicant.  However, it is not known, because of an absence of a transmittal record to which of the VA's Regional Offices these records were sent.  It was the applicant's obligation to get and to provide these records to the Board for its consideration since the Board is not an investigative agency.

8.  The applicant's contention that his disability [alcoholism] should have properly resulted in a disability discharge is noted; however, there is insufficient evidence in his available service records to support this contention.  The facts in this case show very clearly that when the opportunity presented itself for him to take a voluntary early retirement, he elected to avail himself of the opportunity and retired after 17 years instead of remaining for what the majority of officers opt for -a retirement after 20 years of service or more.

9.  In view of the foregoing, there is no basis for granting the applicant's request for a change to the narrative reason for his separation from "Voluntary Early Retirement" to "Disability Retirement."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  ___x__  ___x_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____x      ____
          CHAIRPERSON