DOCKET NUMBER:  AR20090000949 


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, in effect, a change in his Separation Program Designator (SPD) Code of JKL, which denotes shirking of duty, in order for him to become eligible for healthcare benefits from the Department of Veterans Affairs (VA).

2.  The applicant, in effect, admits that he elected to be discharged in lieu of receiving treatment for his addiction.  However, he contends that he served with honor, dignity, and respect and that he did not avoid or neglect his duties in the U.S. Army.  The applicant further states that he was under the impression that he was entitled to VA healthcare benefits until he sought treatment at a VA medical center and was informed that he was not.  The applicant concludes that he will be very appreciative if the Army allows him to obtain Veterans healthcare benefits.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), his Honorable Discharge Certificate, three pages extracted from his civilian medical record, one page extracted from his VA medical record, and three documents extracted from a Congressional inquiry as 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's record shows that he enlisted in the U.S. Army Delayed Entry Program (DEP) on 25 March 1981.  He was discharged from the DEP, enlisted in the Regular Army (RA), and entered active duty on 29 April 1981.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 51K (Plumber).  The highest rank he attained during this period of active duty was the grade of private first class (PFC)/pay grade E-3.

3.  An extract from a Military Police Blotter pertaining to Military Police Report Number *****-83 shows the applicant was arrested and cited for driving while intoxicated (DWI) and driving with a suspended license on 6 January 1983 at Fort Benjamin Harrison, Indiana.

4.  U.S. Army Soldier Support Center, Fort Benjamin Harrison, Indiana, letter, dated 12 January 1983, Subject:  Letter of Notification of Proposed Elimination UP [Under the Provisions of] Chapter 9, Army Regulation 635-200 (Enlisted Separations) shows the applicant's unit commander informed him that he was initiating action to separate him from the Army for alcohol rehabilitation failure.  The commander advised the applicant of his rights to consult with military legal counsel and to submit written statements in his behalf.  The commander concluded by informing the applicant that he could request treatment in a VA medical center.  The applicant acknowledged his receipt and understanding of the notification on the same date.

5.  The 2nd indorsement to U.S. Army Soldier Support Center, Fort Benjamin Harrison, Indiana, letter, dated 12 January 1983, Subject:  Letter of Notification of Proposed Elimination Under the Provisions of Chapter 9, Army Regulation 635-200 shows the applicant's commander recommended that he be discharged under the provisions of Chapter 9 of Army Regulation 635-200 for being an alcohol rehabilitation failure.  After consulting with the applicant's Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Counselor, the commander declared the applicant as a rehabilitative failure.  The commander stated that the applicant had been offered treatment twice, and for a while had responded favorably.  However, the commander opined that the applicant's recent DWI was not indicative of a person who had sincerely overcome his abuse of alcohol.  The commander cited the applicant's apathy toward sincere rehabilitation efforts, failure to demonstrate a willingness and capacity for rehabilitation, and continued abuse of alcohol as the basis for his recommendation.

	a.  The applicant's misconduct involving abuse of alcohol included:  intoxi-cation on post, intoxication on a job site, driving while intoxicated, and driving with a suspended license.

	b.  The applicant completed Track 1 of the ADAPCP in September 1982.  However, he was command-directed back into the program to attend Track II in October 1982.  He was arrested for driving while intoxicated on 6 January 1983.

6.  The 4th indorsement to U.S. Army Soldier Support Center, Fort Benjamin Harrison, Indiana, letter, dated 12 January 1983, Subject:  Letter of Notification of Proposed Elimination Under the Provisions of Chapter 9, Army Regulation 635-200 shows the separation approval authority approved the applicant's discharge and directed that he be furnished an Honorable Discharge Certificate.  The approval authority stated that the applicant had appealed to him in person on 20 January 1983 for retention in the service.  The approval authority denied the applicant's appeal based upon his past performance, the seriousness of his DWI offense, and his refusal to seek inpatient treatment.  The approval authority concluded by stating that the applicant was authorized care at a VA facility for service incurred deformity and alcohol treatment as indicated at inclosures 1 and 3 [Standard Form 88 (Report of Medical Examination) and DA Form 3822-R (Report of Mental Status Evaluation)].  Neither of these documents is present in the applicant's record.

7.  The applicant's DD Form 214 confirms that he was discharged accordingly on 28 January 1983.  Item 24 (Character of Service) of the DD Form 214 issued to the applicant upon separation shows his service was characterized as honorable. Item 25 (Separation Authority) indicates he was separated under the provisions of chapter 9 of Army Regulation 635-200.  The applicant's DD Form 214 also shows that based on the authority and reason for his discharge, he was assigned SPD Codes JPD and JKL in Item 26 (Separation Code).  Item 28 shows his narrative reason for separation was alcohol abuse - rehabilitation failure.

8.  A letter, dated 15 July 1983, shows the applicant requested assistance from a Member of Congress to have his SPD code changed.  The applicant contended that the SPD Codes entered in Item 26 of his DD Form 214 were not compatible with the narrative reason for separation entered in Item 28.  On 21 July 1983, the Senator sent an inquiry to the Chief of Legislative Liaison, Office of the Secretary of the Army, on behalf of the applicant.  On 28 September 1983, a U.S. Army Congressional Coordinator informed the Senator that the applicant's SPD was correct as shown.  The Congressional Coordinator also informed the Senator that if the applicant believed there was an error in his SPD, he could apply to the Army Discharge Review Board for further consideration.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  The applicant provides a two-page Cardiovascular Discharge Instruction form from the Oakwood Healthcare System, dated 4 August 2008, which shows he was diagnosed for heart failure, prescribed several medications, advised about his diet, and advised not to smoke.  The "Follow-Up Care" portion of this form contains an entry advising him to seek further treatment at a VA hospital that day, based on the fact that he was a veteran.

11.  The applicant provides a Cardiovascular Patient Education form from the Oakwood Healthcare System, dated 4 August 2008, which shows he was provided a fact sheet describing the functions and potential side effects of medications he had been prescribed to take.

12.  The applicant provides a one-page extract from his VA medical record showing progress notes rendered by a physician at the Ann Arbor VA Medical Center on 19 August 2008.  This document shows the applicant's diagnosis, prescribed medications, recommended dietary restrictions, and recommended follow-up care.

13.  VA Ann Arbor Healthcare System, Ann Arbor, Michigan, letter, dated 19 August 2008, shows an Eligibility Clerk informed the applicant that veterans who entered military service after September 1980, who served less than 24 months, were not eligible for medical care from the VA unless they are service connected, or receive a disability or hardship discharge.  The Eligibility Clerk also informed the applicant that since he did not meet that criteria, he was not eligible for benefits administered by the VA and that he would be billed for all services rendered.

14.  The applicant provides a Constituent Assistance Authorization Form, dated 6 October 2008, showing the applicant requested assistance from a Member of Congress because he had been denied healthcare benefits from the VA due to the fact that he had not completed the requisite minimum of 24 months of service.  The applicant contended that he completed 21 months of service and had always been told that he was entitled to these benefits.


15.  The applicant provides Congress of the United States, House of Representatives, letter, dated 30 October 2008, in which the Member of Congress informed the applicant of the results of his inquiry on the applicant's behalf.  He informed the applicant that the Army had verified his SPD of JKL, Shirking of Duty.  The basis of the decision was the fact that the applicant did not attend alcohol rehabilitation as ordered.  The Member of Congress also acknowledged the fact that the applicant's completion of only 21 months of service rendered him ineligible for VA healthcare benefits.  The Member of Congress concluded by informing the applicant that he could change his discharge records through the ABCMR in order to obtain medical benefits.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 9 contained the authority and outlined the procedures for discharging individuals because of alcohol or other drug abuse.  A Soldier who had been referred to ADAPCP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilita-tion efforts were no longer practical.  At the time of the applicant’s separation an honorable or general discharge was authorized.

17.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, provided 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 stated, in pertinent part, that the SPD Code JPD (JKL) was the appropriate code to assign to Soldiers separated under the provisions of Chapter 9 of Army Regulation 635-200 in for alcohol rehabilitation failure.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SPD Code of JKL, which denotes shirking of duty, in order for him to become eligible for healthcare benefits from the VA was carefully considered and found to lack merit.

2.  The evidence shows that the applicant had numerous alcohol-related disciplinary infractions and failed to respond to both counseling and rehabilitation efforts.

3.  The evidence of record shows the applicant was recommended and approved for separation under the provisions of Chapter 9 of Army Regulation 635-200, by reason of his alcohol rehabilitation failure.  The evidence also shows the applicant was assigned the appropriate SPD Code of JPD (JKL) at the time of his discharge.
4.  Based on his record of indiscipline and his failure of the ADAPCP, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an change in SPD Code.

5.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for receipt of VA healthcare benefits.

6.  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 and there is no basis for granting his request.

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)                                         AR20090000949



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ABCMR Record of Proceedings (cont)                                         AR20090000949



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