IN THE CASE OF:	  

		BOARD DATE:	      13 AUGUST 2009

		DOCKET NUMBER:  AR20080019931 


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:

1.  The applicant requests that his discharge for alcohol rehabilitation failure be changed to a medical discharge.

2.  The applicant essentially states that he was discharged for alcohol rehabilitation failure but should have been medically discharged because of his left knee condition.  He also states that his left knee condition is service connected.

3.  The applicant provides no additional 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's military records show that he enlisted in the Regular Army on 12 November 1999.  He completed basic training at Fort Benning, Georgia, and was reassigned to Fort Gordon, Georgia, for advanced individual training.

3.  On 2 May 2000, the applicant was evaluated at the Army Substance Abuse Program (ASAP) Community Counseling Center (CCC) as a self-referral and was enrolled in the ASAP CCC Outpatient Treatment Program on 5 May 2000.

4.  On 2 June 2000, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being found drunk on duty and failing to go at the time prescribed to his appointed place of duty on two occasions.  His punishment consisted of a reduction in rank and pay grade from private/E-2 to private/E-1, which was suspended and later remitted without action, forfeiture of $235.00, 14 days of restriction, and 14 days of extra duty.

5.  On 12 June 2000, the applicant was found to be under the influence of alcohol with a breathalyzer reading of .21 percent.

6.  In a letter, dated 23 June 2000, a counseling psychologist from the ASAP CCC informed the applicant's commander that the applicant did not comply with the terms of his treatment program plan and had begun to minimize the severity of his problem with alcohol by returning to alcohol consumption.  This letter also stated that both the ASAP CCC staff and the applicant's commander jointly declared him a rehabilitation failure.

7.  On 25 July 2000, the applicant's commanding officer notified him that she was initiating action to separate him from the United States Army under Army Regulation 635-200 (Enlisted Personnel), paragraph 9-2a, for alcohol abuse rehabilitation failure.  He was also advised of his rights.

8.  On 2 August 2000, a physical examination was conducted on the applicant and although he was issued a temporary physical profile because of a history of left knee pain, he was found medically qualified for separation.

9.  On 15 August 2000, the applicant acknowledged that he had been advised by consulting counsel for the contemplated action to accomplish his separation for alcohol abuse rehabilitation failure under the provisions of Army Regulation 
635-200, paragraph 9-2a, and its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He requested military consulting counsel, but did not elect to make a statement in his own behalf.  He also acknowledged that understood that he could expect to encounter substantial prejudice in civilian life in a general discharge under honorable conditions was issued to him.  
10.  On 21 August 2000, the proper separation authority approved the applicant's discharge under the provisions of chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), Army Regulation 635-200, and directed that he be furnished a General Discharge Certificate.  On 30 August 2000, the applicant was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) has an entry of "alcohol rehabilitation failure."

11.  Chapter 4 (Rehabilitation) of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) [later was known as the Army Substance Abuse Program (ASAP)], in effect at the time, provided, in pertinent part, that rehabilitation began when an individual was identified as being involved with alcohol and other drug abuse or illegal use.  After the initial screening interview had been completed, the rehabilitation team would meet to make a determination of what rehabilitation approach would best meet the needs of the individual and achieve his or her earliest possible return to full effective duty.  The Army's rehabilitation program was divided into three tracks.  Track I provided alcohol and other drug awareness education and individual or group counseling or assessment as required.  Track II provided individual, group, or family counseling on a nonresidential or out-patient basis.  In addition to a more intensified counseling effort, the education sessions of Track I were available.  Enrollment in Track II was for a minimum of 30 days.  Track III provided an intensive residential rehabilitation treatment program of 6 to 8 weeks of duration with mandatory nonresidential follow-up period for a total treatment program of 1 year.  The decision to enter a client into Track III was made by a physician in consultation with the other rehabilitation team members.  The ADAPCP was a manpower conservation program designed to assist commanders in retaining Soldiers with potential for continued military service.  However, when a commander in consultation with the ADAPCP staff determined that further rehabilitative measures were not practical and that separation would be based upon alcohol or other drug abuse, Army Regulation 635-200 would be used for enlisted personnel.

12.  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 ADAPCP/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.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, 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.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  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 DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge for alcohol rehabilitation failure should be changed to a medical discharge.

2.  While the applicant contends that he should have been medically discharged for his left knee condition, he was only issued a temporary physical profile for his left knee.  He was found medically qualified for separation by competent medical authority and, as a result, there was no requirement to process the applicant through the Army Physical Disability Evaluation System.

3.  Evidence of record clearly shows that the applicant accepted NJP under Article 15 of the UCMJ for being found drunk on duty and was later found to be under the influence of alcohol with a breathalyzer reading of .21 percent while enrolled in the ASAP.  He was ultimately declared an alcohol rehabilitation failure and was properly discharged under the provisions of chapter 9, Army Regulation 635-200, for alcohol abuse rehabilitation failure.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  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.  In view of the foregoing, there is no basis for changing the applicant's discharge for alcohol rehabilitation failure to a medical discharge.

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.



      ___________XXX______________
                 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)                                         AR20080019931



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ABCMR Record of Proceedings (cont)                                         AR20080019931



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