IN THE CASE OF:	  

		BOARD DATE:	  20 August 2009

		DOCKET NUMBER:  AR20090005597 


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, that his narrative reason for discharge “Alcohol Abuse-Rehabilitation Failure” be changed to physical disability.  

2.  The applicant states, in effect, that he should have been separated due to physical disability instead of being discharged for alcohol abuse - rehabilitation failure.  He was diagnosed with bi-polar disorder after his discharge and that this was the reason for his problems.  The applicant states that the Army never tested him for bi-polar disorder and he believes had he received the proper medication he could have continued in the Army. 

3.  The applicant provides no additional documentation in support of this case.

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 29 June 1982.  He successfully completed basic combat training, advanced individual training, and he was awarded military occupational specialty 12B (Combat Engineer). 

3.  Records show the applicant was absent without leave for the period 
1 September 1983 through 12 September 1983.

4.  The applicant's record reveals a disciplinary history that includes general counseling on the following dates:  

	a.  3 January 1984 for being absent from formation; 
	
	b.  10 January 1984 for failure to be at his appointed place of duty;

	c.  7 February 1984 for threatening to do harm to a fellow Soldier; and 

	d.  5 March 1984 for failure to secure his assigned vehicle over the weekend.
 
5.  On 23 March 1984, the applicant was drunk and disorderly and was apprehended by military police.

6.  The applicant's record further reveals a disciplinary history that includes general counseling on the following dates:  

	a.  26 March 1984 for displaying a poor attitude; and 

	b.  29 September 1984, for failure to repair.

7.  On 3 May 1984,  the applicant was command directed to enroll in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He was enrolled in the Track II Program for rehabilitation purposes with a treatment plan.  

8.  On Memorial Day weekend of May 1984, the applicant was involved in another alcohol related incident.

9.  By a memorandum, dated 18 October 1984, the ADAPCP Clinical Director advised the applicant's company commander that since the applicant's enrollment he had been scheduled for 19 appointments, three of which were missed.  The director stated on 18 May 1984, the applicant had taken urinalysis test and returned positive for marijuana and that the applicant's progress in the program was poor as indicated by his missed appointments and continued alcohol related incidents.
10.  The director further stated that the applicant was seen at the hospital and given a prescription of antabuse which he was to take continuously.  At that time although he was reluctant to go into the hospital program, he agreed to schedule himself for Track III, in-patient treatment.  However, given the applicant's most recent alcohol related incident he was not taking the antabuse as directed, constituting a failure to cooperate with treatment.  The director indicated the applicant was considered a rehabilitation failure.

11.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 25 October 1984, shows the applicant underwent a mental evaluation by a military medical physician who determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings. 

12.  On 26 October 1984, the applicant was notified by his company commander that he was being processed for separation under the provisions of chapter 9 of Army Regulation 635-200 for Alcohol or Other Drug Abuse-Rehabilitation Failure. 

13.  The applicant was further advised that he was being recommended for a general discharge under honorable conditions, due to alcohol and drug abuse rehabilitation failure.  He was also advised that this action was suspended for 
7 days to give the applicant the opportunity to exercise the following rights:  

   a.  "Request appointment of military counsel;
	
b.  submit a statement on his behalf; or

	c.  waive the foregoing rights in writing or by declining to reply within 7 days."

14.  On 1 November 1984, the applicant acknowledged that he had been advised of the basis for his separation action under the provisions of chapter 9, Army Regulation 635-200.  The applicant acknowledged that he was counseled by appropriate legal counsel and that he did not wish to have his case heard by an administrative separation board.  The applicant also indicated that he did provide statements on his own behalf.

15.  The applicant stated that he should have received an honorable discharge because his duty performance was good and that he had always soldiered to the best of his ability.  It was unfortunate that he had a problem with alcohol that no one seems to be able to resolve.  Therefore, he felt his problem with alcohol should not interfere with an honorable discharge.


16.  On 11 December 1984, the applicant was discharged under the provisions of 
chapter 9, Army Regulation 635-200, for Drug Abuse-Rehabilitation Failure.  The applicant was issued a General Discharge Certificate.  Records show the applicant had completed a total of 2 years, 5 months, and 1 day of creditable active service at the time of separation with no lost time.

17.  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 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.  At the time of the applicant’s separation, an honorable or general discharge was authorized.  

18.  Chapter 5 of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), in pertinent part, states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander, in consultation with the ADAPCP staff, determines that further rehabilitation efforts are not practical and that rehabilitation is a failure.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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, or rank.

20.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect.  






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that bi-polar disorder was the cause of his problems while he was in the service and that he should have been discharged due to physical disability.  The available evidence shows that the applicant was administratively separated for alcohol abuse - rehabilitation failure.  

2.  There is no medical evidence of record that shows he had any mental or medical condition prior to his discharge, on 11 December 1984, that would have rendered him eligible for physical disability processing.  A military physician found no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and the applicant had the mental capacity to understand and participate in board proceedings.  Therefore, the applicant has not established a basis sufficient to change the narrative reason for his discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

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)                                         AR20090005597



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ABCMR Record of Proceedings (cont)                                         AR20090005597



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