IN THE CASE OF:	  

		BOARD DATE:	        3 September 2009

		DOCKET NUMBER:  AR20090005418 


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 general discharge be changed to an honorable discharge by reason of physical disability.

2.  The applicant states that at the time of his discharge, alcoholism was not recognized or characterized as a disease.  Alcohol dependence and abuse are both recognized disorders according to Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM IV) and if they had been recognized at the time of his discharge he would have received a medical discharge and an honorable character of service.  However, at the time he did not know that alcoholism was a disease and he just learned it during a recent outpatient rehabilitation program.

3.  The applicant provides copies of his DD Form 214s (Report of Separation from Active Duty).

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 enlisted in the Regular Army on 19 August 1976 and served as a cannon crewman until he was honorably released from active duty (REFRAD) on 14 August 1979.

3.  He again enlisted in the Regular Army on 7 July 1981 for a period of 3 years, a cash enlistment bonus and assignment to the 194th Armored Brigade at Fort Knox, Kentucky.  He was promoted to the pay grade of E-5 on 2 August 1982.

4.  On 24 September 1982, he was transferred to Germany for assignment to a field artillery battery.

5.  On 16 November 1982, the applicant was command referred to the Alcohol and Drug Abuse Prevention Control Program (ADAPCP) and was enrolled in Track II.  However, he informed the counselor that he had been previously enrolled in the ADAPCP during his former enlistment  and he had no intentions of going through the program again or rehabilitating himself.  The clinical director deemed his potential for rehabilitation as being poor.

6.  On 17 November 1982, the applicant presented himself to the unit first sergeant (1SG) and requested that he be given a chapter 9 discharge.

7.  On 28 December 1982, the applicant's commander initiated action to discharge the applicant under the provisions of Army Regulation 635-200, chapter 9, due to alcohol abuse rehabilitation failure.  He also indicated that the applicant had been referred and enrolled in the ADAPCP after he had placed his hand through a glass door while intoxicated; however, he had been deemed a rehabilitative failure.  After consulting with counsel, the applicant requested treatment in the Veteran Administration (VA) medical center and elected not to submit a statement in his own behalf. 

8.  The appropriate authority approved the recommendation for discharge on    30 December 1982 and directed that the applicant be furnished a "General Discharge Certificate."

9.  Accordingly, he was discharged under honorable conditions on 17 January 1983, under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse - rehabilitation failure.  He had served 1 year, 6 months, and 11 days of active service during his current enlistment.

10.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 of that regulation contains the authority and outlines the procedures for discharging individuals because of alcohol and/or drug abuse.  A member may be separated because of inability or refusal to participate in, or successfully complete a rehabilitation program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Characterization of service will be determined solely by the Soldier’s military record that includes the Soldier’s behavior and performance during the current enlistment.  An honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that medical evaluation boards 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 qualification for retention based on the criteria Army Regulation 40-501, chapter 3.

13.  Army Regulation 40-501 (Standards of Medical Fitness), the version in effect at the time of the applicant's separation, did not discuss alcoholism or other substance abuse conditions.  The regulation was amended on 1 December 1983 to add a section on substance use disorders.  The regulation stated that these conditions may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.  The current regulation continues this guidance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no evidence of any violations of the applicant’s rights.  Accordingly, his service was properly characterized and he was given the proper narrative reason for his separation. 

2.  The applicant’s contentions have been noted.  However, neither at the time of his separation nor currently would his alcoholism rendered him eligible for a physical disability discharge, and his overall record of service does not constitute fully honorable service.  
3.  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)                                         AR20090005418





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005418



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1