IN THE CASE OF:	  

		BOARD DATE:	  30 April 2009 

		DOCKET NUMBER:  AR20080013152 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant submits his requests, statements, and supporting documents through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, vacation of the applicant’s 15 August 2005 discharge from the United States Army Reserve (USAR); reinstatement to Reserve duty; restoration of all pay, allowances, entitlements, rights, and privileges affected as a result of his discharge; and any other appropriate relief to which he may be entitled.  In the alternative, Counsel requests, in effect, a change to the narrative reason for the applicant's separation to reflect "End of Active Obligated Service" vice "Alcohol Rehabilitation Failure" and a change to his reentry eligibility (RE) code from RE-4 to RE-1.

3.  Counsel summarizes the applicant’s military service history including earned awards, performance evaluation reports, and deployment record, and states, in effect, that the applicant was a highly decorated Special Forces (Green Beret) Soldier who deployed numerous times to all parts of the world to the front lines in support of the Global War on Terrorism.

4.  Counsel also outlines some of the tragic events experienced by the applicant during his deployments and states that upon returning from almost back-to-back deployments, the applicant began to experience extreme symptoms of a post-traumatic stress disorder (PTSD) which included his having to sleep with a gun under his mattress, being hyper vigilant, having night sweats and night terrors, and starting to drink to self-medicate to try to stop his fears.  He further states that following the applicant's final deployment to Iraq, he began to have problems with alcohol and was command-referred to the Alcohol and Substance Abuse Prevention Program (ASAP) and enrolled for treatment on 20 October 2004.  He states that the applicant abstained from any alcohol consumption, attended weekly meetings, participated in group discussions from 20 October 2004 through 10 November 2004, and was released from ASAP early on 10 November 2004 based on an upcoming deployment back to Iraq which was scheduled for 19 November 2004.  He indicates the applicant missed movement and was admitted to Penrose Hospital for detoxification and was scheduled for in-patient treatment at the Naval Medical Center in Portsmouth, Virginia, on 22 November 2004.

5.  Counsel further states that the Army did not have any systems in place to properly diagnose PTSD during 2004 through 2005 and that the applicant hid his symptoms because he did not understand what was happening to him and in fear that his chain of command would take steps to separate him versus helping him. 
He indicates that a mental evaluation completed on the applicant on 13 June 2005 confirms that no evaluation was done to determine if he was suffering from anything other than alcohol dependency or to identify any additional symptoms he could have been experiencing.  Counsel argues that no follow-up was done to ascertain why a 17-year veteran would suddenly begin to drink uncontrollably with no prior warning, no history of alcohol abuse, and no disciplinary infractions of any nature.

6.  Counsel also indicates that the applicant continued to drink alcohol following both military and civilian medical treatment until he completed eye movement desensitization reprocessing therapy in September 2007 and that the applicant has had a successful employment history since that time.

7.  Counsel provides a petition for correction of military record and the 29 attachments identified in the index included with the petition in support of the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows that after having prior Reserve Component service, he enlisted in the Regular Army (RA) and entered active duty on 4 October 1995.  He was trained in, awarded, and served in military occupational specialties (MOS) 18E (Special Forces Communications Sergeant) and 18C (Special Forces Engineer Sergeant).

2.  The applicant's Enlisted Record Brief (ERB) shows, in Section I (Assignment Information), that he completed a 14-month tour in Germany that ended in December 1996; a deployment to Bosnia of 4 months in August 1999; a deployment to Kosovo of 4 months that ended in December 2002; and two deployments to Iraq of 4 months and 3 months in duration which ended in June 2003 and May 2004, respectively.

3.  Section VIII (Awards and Decorations) of the applicant's ERB shows he earned the following awards during his active duty tenure:  Bronze Star Medal, Army Commendation Medal (2nd Award), Army Achievement Medal (2nd Award), Army Good Conduct Medal, Army Reserve Components Achievement Medal (2nd Award), National Defense Service Medal (2nd Award), Armed Forces Expeditionary Medal, Kosovo Campaign Medal, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Army Service Ribbon, Overseas Service Ribbon, North Atlantic Treaty Organization Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Special Forces Tab, Combat Infantryman Badge, Expert Infantryman Badge, Parachutist Badge, and Marksman Marksmanship Qualification Badge.

4.  The applicant’s official military personnel file (OMPF) contains an ASAP Clinical Director memorandum, dated 7 March 2004 [sic], which shows the applicant was command-referred to the ASAP on 27 September 2004 and that he was evaluated and enrolled in this program and diagnosed with alcohol dependence on 20 October 2004.  It also shows that he attended four group sessions, remained abstinent, attended weekly meetings, and participated in group discussions between 21 October and 10 November 2004.  It further indicates the applicant was released from the ASAP on 10 November 2004 due to a scheduled deployment; however, the applicant missed movement on 20 November 2004 and was admitted to Penrose Hospital for detoxification from alcohol.

5.  On 22 November 2004, the applicant was command-referred for inpatient treatment which was scheduled from 2 through 28 January 2005 at the Naval Medical Center, Substance Abuse Program, Norfolk, Virginia.  While awaiting inpatient treatment, he again attended weekly group and individual sessions, Alcohol Anonymous meetings, took Antabuse, and remained abstinent during this period.

6.  On 24 February 2005, the applicant’s supervisor reported that the applicant was drinking and had been since 16 February 2005.  In addition, the applicant's wife reported he had been drinking prior to going to his inpatient treatment at Norfolk and had arrived for treatment a day late and drunk.  The Naval Medical Center confirmed he arrived 1 day late with a blood alcohol content of .22.
7.  The applicant’s OMPF contains a DA Form 4856 (Developmental Counseling Form), dated 3 March 2005, which shows his commander counseled him in reference to his failure to report to duty, unauthorized absence, relapse of excessive alcohol consumption, failure to obey lawful orders, and of the command's concerns for both his family and his own well being.  The applicant was additionally informed that his continued display of similar behavior could result in punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), adverse action such as a bar to reenlistment, suspension of favorable personnel actions, or a possible separation action.

8.  On 4 March 2005, the ASAP Clinical Director and the applicant's commander determined the applicant was a rehabilitation failure.  The Clinical Director indicated that the applicant’s progress was poor and that he had reasonable opportunity for rehabilitation without success.  The Clinical Director finally stated that the information disclosed in the 7 March 2004 [sic] memorandum was taken from confidential records protected by Federal law.

9.  On 30 March 2005, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for disobeying a lawful order on 1 March 2005.  The punishment imposed was forfeiture of $1,449.00 pay per month for 2 months, 45 days of restriction, and 45 days of extra duty, which was all suspended, to be automatically remitted if not vacated before 30 September 2005.

10.  On 13 June 2005, the applicant’s punishment under Article 15 of the UCMJ imposed on 30 March 2005 was vacated based on his being absent without leave (AWOL) from 3 through 6 June 2005.

11.  On 13 June 2005, the applicant was issued a letter of reprimand for his failure to maintain the proper standards of a Soldier, being unable to report to duty as a result of prior over indulgence in alcohol, and for remaining AWOL as a result of his condition until the unit was able to coordinate his return.

12.  On 13 June 2005, the applicant underwent a mental status evaluation.  The examining psychologist determined the applicant's behavior was "normal," his level of alertness was "fully alert," his level of orientation was "fully oriented," his mood and affect was "unremarkable," his thinking process was "clear," his thought content was "normal," and his memory was "good."  She further indicated the applicant carried the following diagnosis:  Axis 1 – alcohol dependence, Axis II – no diagnosis, and Axis III – non-contributory.

13.  The examining psychologist also provided a proposal for treatment which was that the applicant receive inpatient hospitalization at a Minnesota alcohol treatment program.  She also provided precaution recommendations that included modified duty, no use of weapons or live ammunition, and an order against the use of alcohol.  In addition, she psychiatrically cleared the applicant for any action deemed appropriate by his command and recommended that the applicant be expeditiously processed for separation under the provisions of chapter 9, Army Regulation 635-200 (Enlisted Personnel Separations).

14.  Finally, the examining psychologist provided remarks that indicated the applicant was discharged from the Cedar Springs Hospital after being treated for alcohol-related detoxification and met with his commander on 9 June 2005.  She also commented that the applicant would be escorted by his father back to Minnesota to participate in an alcohol treatment program there and that he would return after he completed the initial 30 days of the program to clear and be separated from the Army under the provisions of chapter 9, Army Regulation 635-200.

15.  The applicant's medical records provide no treatment records that indicate he was suffering from a disabling physical or mental condition other than the diagnosed alcoholism that would have prevented his further service or that supported his separation processing through medical channels at the time of his discharge processing.

16.  On 27 July 2005, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 9, Army Regulation 635-200, by reason of alcohol rehabilitation failure.  He cited the applicant’s rehabilitation failures after a command referral to ASAP as the basis for the separation action and recommended the applicant receive a general, under honorable conditions discharge.

17.  On 4 August 2005, the applicant consulted with legal counsel and having been advised of the basis for the contemplated separation and of the rights available to him, he voluntarily waived consideration of his case by an administrative board contingent upon receiving an honorable discharge (HD).  He further requested that his case be considered by an administrative separation board and that he be represented by counsel if the separation authority refused to accept his conditional waiver.  He also acknowledged that he understood that a discharge under the provisions of chapter 9, Army Regulation 635-200, carried with it a nonwaivable disqualification that would prohibit him from enlisting in the Active Army or any Army Reserve Component at a future date.  He also elected to submit a statement in his own behalf.

18.  In his statement the applicant indicated that through September 2004 he never had any adverse actions taken against him and had never been in any kind of trouble; however, at that point he experienced personal problems that he was unable to cope with and developed a drinking problem.  He claimed he did not realize its severity until he tried to stop and apologized for the frustration and disappointment he caused his unit.  He also indicated that he enrolled himself in a private rehabilitation facility at his own expense which proved to be successful.

19.  On 5 August 2005, the separation authority approved the applicant's discharge under the provisions of chapter 9, Army Regulation 635-200, and directed that he receive an HD in accordance with the terms of the applicant's conditional waiver request.  On 15 August 2005, the applicant was discharged from the RA accordingly.

20.  The DD Form 214 issued to the applicant on the date of his discharge confirms he completed a total of 10 years, 1 month, and 17 days of active military service and 7 years, 5 months, and 6 days of inactive military service.  It further shows his component at the time of discharge was the RA and he was not transferred to the USAR.  Item 18 (Remarks) contains entries documenting his deployments to Bosnia, Kosovo, and Iraq.  It also confirms that based on the authority and reason for his discharge, he was assigned a separation program designator (SPD) code of JPD and an RE code of 4.

21.  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 (now known as ASAP) 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.  The separation authority may issue an honorable or general discharge for members separated under these provisions based on the member's overall record of service.  An honorable discharge is required if restricted use information is used in the discharge process.

22.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  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-1 permits immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for 

continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

23.  Army Regulation 635-5-1 (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.  Additionally, the SPD/RE Code Cross Reference Table establishes RE Codes to be assigned for each SPD.

24.  A SPD code of JPD applies to persons who are separated by reason of alcohol rehabilitation failure under the provisions of chapter 9, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated by reason of alcohol rehabilitation failure and assigned an SPD code of JPD.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions that the applicant's USAR discharge should be vacated; that he should be reinstated in to Reserve duty; that all pay, allowances, entitlements, rights, and privileges affected as a result of his discharge should be restored; that he should be provided any other appropriate relief, or in the alternative, that the narrative reason for the applicant's separation should be changed to reflect "End of Active Obligated Service" vice "Alcohol Rehabilitation Failure"; and that his RE-4 code should be changed to an RE-1 code were carefully considered.  However, there is insufficient evidence to support these claims.

2.  The applicant enlisted in the RA on 4 October 1995 and was an RA Soldier at the time he was discharged in August 2005.

3.  The evidence of record is void of any medical treatment records that indicate the applicant suffered from a disabling/disqualifying physical or mental condition other than alcohol dependence that would have disqualified him from further service or warranted his separation processing through medical channels.  There is no medical evidence of record or independent evidence provided by the applicant or his counsel that confirms he suffered from a disabling PTSD at the 

time of his discharge.  His record confirms he underwent a mental status evaluation that psychiatrically cleared him for separation and that resulted in a recommendation that he be separated by reason of alcohol rehabilitation failure.

4.  The evidence of record further shows the applicant's separation processing, which includes the assignment of the SPD code of JPD and the RE code of 4,  was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows that the applicant was separated under the terms of his own conditional waiver and that the separation authority appropriately recognized his overall record of service by accepting the applicant's conditional waiver and granting him an honorable discharge.

5.  The evidence of record also confirms that the applicant was declared a rehabilitation failure only after multiple attempts were made to rehabilitate him which included both outpatient and inpatient treatment.  The applicant's failure to respond to these rehabilitation attempts clearly supported his separation processing and ultimate discharge based on his alcohol rehabilitation failure.

6.  By violating the Army's policy not to abuse alcohol, the applicant compromised the special trust and confidence placed in a Soldier and noncommissioned officer.  He had the duty to support and abide by the Army's alcohol and drug abuse policies and by abusing alcohol he knowingly risked a military career.  The RE-4 code assigned to the applicant at discharge was and remains valid based on the authority and reason for his separation.  Therefore, there is an insufficient evidentiary basis to support a change to this code or that supports his reinstatement either in the RA or USAR.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

7.  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.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013152



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ABCMR Record of Proceedings (cont)                                         AR20080013152



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