RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070018023 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, medical retirement.

2.  The applicant states, in effect that, in March 1991 he was medically evacuated to Landstuhl, Germany, for injuries sustained during Operation Desert Storm.  He underwent spinal surgery.  He contends that he turned down an early medical retirement (rated as 30 percent disabled), therefore, he should not have been discharged for drug abuse rehabilitation failure.  He also contends that he was only assigned to one drug and alcohol class and he received a satisfactory completion certificate.  Because he was under extremely heavy medication at the time, he was easily pliable and easy to manipulate; he was unable to make decisions on his own.  Since his discharge he has had other surgeries and is possibly facing more.  He became dependent on drugs prescribed by the Department of Veterans Affairs (DVA) and had stepped up his alcohol dependency.  He has been free of dependencies for over 6 years.

3.  The applicant did not provide additional documentary evidence in support of this application.      

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 served in the Regular Army from 8 April 1976 through
10 February 1992.  He was honorably discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 9, for drug abuse rehabilitation failure.  

3.  On 16 July 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his prescribed place of duty, work call formation.  His punishment consisted of a forfeiture of one-half month's pay and 45 days of restriction. 

4.  The applicant's record does not show the basis for his referral to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  However, on 
23 September 1991, the Clinical Director of the Fort Jackson Counseling Center provided the applicant's unit commander a summary of his enrollment in the ADAPCP program.  He indicated the applicant was enrolled in Track II on 25 July 1991.  He attended Track I classes on 11 and 12 September 1991.  He also indicated that the applicant had previously been enrolled in ADAPCP at another duty station (in 1983) and had not cooperated in the program at that time.  Based on the information gathered, the applicant appeared to have little motivation for change of his behavior and seemed unwilling or unable to participate in a sobriety program.  Assessment for future success in the ADAPCP appeared poor. 

5.  A review of the applicant's DA Form 4466 (ADAPCP Client Progress Report (CPR), dated 8 October 1991, shows that the applicant was released from the Track II program.  His counselor assessed his progress as unsatisfactory and recommended his separation from the Army.  His unit commander indicated that his efficiency and conduct were satisfactory.  This form did not specify whether the applicant was enrolled in ADAPCP for alcohol and/or drug abuse.

6.  On 22 November 1991, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to morning formation.  His punishment consisted of a reduction to sergeant (SGT)/E-5, a forfeiture of $711.00, and
30 days of restriction and extra duty.

7.  The applicant was also counseled on numerous occasions for failing to go to formation, work, and for failure to cooperate within the ADAPCP established guidelines.

8.  On 16 December 1991, the applicant's unit commander initiated action to separate the applicant under the provisions of chapter 9, Army Regulation 635-200, by reason of alcohol or other drug abuse rehabilitation failure.  The unit commander indicated that he was initiating action to separate the applicant because the applicant failed to complete Track II of the ADAPCP and was declared a rehabilitative failure.  He also had a pattern of unsatisfactory performance as evidenced by his repeated failures to be at his appointed place of duty.

9.  On 10 February 1992, the applicant was honorably separated under the provisions of Army Regulation 635-200, chapter 9, by reason of drug abuse rehabilitation failure.  

10.  The applicant's service medical records were not available for review.

11.  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 the Alcohol and Drug Abuse Prevention and Control Program (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 policy states that an honorable or general discharge is authorized depending on the applicant’s overall record of service.  (However, an honorable discharge is required if restricted use information is used in the discharge process).

12.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.
If the Medical Evaluation Board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired based on a back injury sustained during Operation Desert Storm.

2.  The applicant's service medical records were not available for review.  There is no evidence available showing the applicant was referred to the Army's physical disability evaluation system.  The available evidence shows that the narrative reason for separation was appropriate based on the applicant's failure or refusal to participate in, cooperate in, or successfully complete Track II of the ADAPCP program.

3.  The applicant violated the Army's policy not to abuse alcohol and/or illegal drugs.  He compromised the special trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as an NCO, had the duty to support and abide by the Army's substance abuse policies.  The command attempted to assist the applicant in performing and conducting himself to Army standards by providing ADAPCP counseling and by the imposition of NJP.  The applicant failed to respond appropriately to these efforts.

4.  Given the above, an in the absence of any evidence to the contrary, the applicant's narrative reason for discharge is fully supported by his official record.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __jgh___  __ksj___  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.




							PHM
      ______________________
                CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20070018023



2


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508