IN THE CASE OF:	

		BOARD DATE:	1 October 2009 

		DOCKET NUMBER:  AR20090012871 


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 correction of his records to show he was medically discharged or medically retired based on permanent disability.

2.  The applicant states he was in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for only 49 days when he was declared a rehabilitation failure and administratively discharged on 20 February 1991.

	a.  He was not informed about the health problems he had on his final medical examination and he was sick for a long time before realizing his disease began when he was in the Army.  His final medical examination shows that he had a non-fasting glucose test result of 195 milligrams per deciliter and a fasting glucose test was ordered, which indicates the Army was aware of this problem.  He adds that his final medical examination also shows he was diagnosed with bilateral high frequency hearing loss.

	b.  His blood draws from 1989 and 1991 show a significant increase in glucose, cholesterol, and triglyceride levels and he was initially diagnosed with diabetes in 1992.  He has since read information that indicates he was a diabetic at the time.  He adds, if he had been made aware of his condition at the time of his separation, his diabetes could have been treated and he could have delayed and prevented the condition from becoming worse.

	c.  Based on his symptoms of excessive thirst and significant weight loss, he was placed on insulin and hospitalized in 1993 for uncontrolled diabetes with ketoacidosis.

	d.  At the time of his separation processing he was going through a divorce and he was worried and stressed about his three children in New York.  The Chronological Record of Medical Treatment (ADAPCP Psychiatry) report reveals inaccuracies, such as the date (i.e., "3 January 1981" should read "3 January 1991"); that he "was just recently becoming serious about the program but then states at the bottom of the entry 'looks like rehab[ilitative] failure.'"  He adds that the ADAPCP Client Intake/Screening Record indicates that he never used cannabis; however, that is the reason he was a self-referral and voluntarily requested treatment.

	e.  He states that he has an impeccable service record.  Aside from this bad decision, he performed his job very well while he was going through the rehabilitation program.

	f.  He did not know he was eligible for benefits from the Department of Veterans Affairs (VA) until a VA Service Officer reviewed his records.  He is now rated with a 50-percent disability for diabetes mellitus, tinnitus, and bilateral hearing loss.

   g.  He concludes that his medical conditions that originated during his active duty service should have been considered at the time of his discharge.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 256A (Honorable Discharge Certificate), DA Form 2-1 (Personnel Qualification Record), two DA Forms 2166-6 (Enlisted Evaluation Reports), three DA Forms 2166-7 (Noncommissioned Officer Evaluation Reports), five DA Forms 1059 (Service School Academic Reports), ADAPCP Intake/Screening Record, Service Medical Treatment Records, and VA Rating Decisions in support of his 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 enlisted and entered active duty in the Regular Army on 7 September 1983.  He progressed normally and was promoted to staff sergeant in July 1988.

3.  Headquarters, 5th Infantry Division (Mechanized) and Fort Polk, Fort Polk, LA, memorandum, dated 30 November 1990, shows the Alcohol Drug Control Officer (ADCO), ADAPCP, informed the applicant's commander that the applicant was initially screened on 18 October 1990, evaluated as a self-referral for cannabis use, and enrolled in Track II on 8 November 1990.  This document shows "the Soldier states he has continued to use marijuana while enrolled in the program and has not followed through with his treatment contract as agreed upon."  The ADCO added "the prognosis for rehabilitation is doubtful" and "upon consultation with the rehabilitation team on 26 November 1990, it was determined that further rehabilitative efforts are not practical."

4.  A Urinalysis Custody and Report Record, dated 21 December 1990, shows the applicant was tested as a rehabilitation client, the laboratory results were "positive for amphetamine, methamphetamine," and the laboratory test results were certified by the Laboratory Official Records Custodian.

5.  A memorandum, dated 10 January 1991, from the ADCO to the Commander, Company C, 705th Support Battalion (Mechanized), shows "a urine positive test for cannabis (tetrahydrocannibinol) was received by this facility on 27 November 1990 and another positive for amphetamines and methamphetamines on 21 December 1990."  The ADCO stated, "in consultation with the commander on 3 January 1991, it was determined that further rehabilitation efforts are not practical, rendering the Soldier a rehabilitation failure" and "under the provisions of the current regulation, he should be processed for separation."

6.  A Standard Form 88 (Report of Medical Examination), dated 28 January 1991, that documents the applicant's separation medical examination shows in item 50 (Other Tests) a non-fasting glucose test of 195.  This item also shows the handwritten entry "recent fasting glucose:  108 [milligrams per deciliter]."  Item 73 (Notes) shows the physician noted the applicant's social history of marijuana and amphetamines use.  Item 74 (Summary of Defects and Diagnoses) shows a handwritten entry referencing item 50 indicating "[elevated] glucose at 195 [milligrams per deciliter] non-fasting" and referencing item 71 (Audiometer) indicating "bilateral high-frequency hearing loss."  Item 75 (Recommendations - Further Specialist Examinations Indicated) shows the handwritten entries "repeat fasting blood glucose per number 50" and "consult to audiology per number 71."  This document also shows the examining physician found the applicant qualified for separation (i.e., chapter proceedings) and the brigade surgeon approved the results of the medical examination.
7.  On 5 February 1991, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9 (Separation for Alcohol or Other Drug Abuse), with an Honorable Discharge Certificate.  The reasons for the proposed action were based on the applicant's inability to participate in, cooperate in, and successfully complete the ADAPCP for drug abuse.  He also stated that the applicant's lack of potential for continued Army service and rehabilitation efforts are no longer practical, rendering the applicant a rehabilitation failure.

8.  On 6 February 1991, the applicant acknowledged receipt of the notification of separation action.  The applicant also acknowledged that military legal counsel was available for consultation to assist him.  The applicant waived consideration of his case by a board of officers and personal appearance before a board of officers.  He elected not to submit statements in his own behalf and waived representation by military counsel.  Both the applicant and his legal counsel each placed their signature on the document.

9.  On 8 February 1991, the company commander recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation 
635-200, chapter 9.  The battalion commander also recommended approval of the separation action and an honorable discharge.

10.  On 11 February 1991, the separation authority waived further counseling and rehabilitative requirements and approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 9, based on drug abuse rehabilitation failure.  The commander also directed the applicant be issued an Honorable Discharge Certificate.

11.  The applicant's DD Form 214 shows he was honorably discharged 20 February 1991 under the provisions of Army Regulation 635-200, chapter 9, based on drug abuse rehabilitation failure.  At the time he had completed 7 years, 5 months, and 13 days of net active service.  Item 18 (Remarks) shows he had immediate reenlistments during this period from 7 September 1983 to 16 June 1986, 17 June 1986 to 19 April 1989, and 20 April 1989 to 20 February 1991.

12.  In support of his application, the applicant provides the following documents:

	a.  his DD Form 214, DD Form 256A, and DA Form 2-1 that document the applicant's honorable service from 7 September 1983 through 20 February 1991;

	b.  two enlisted evaluation reports and three noncommissioned officer evaluation reports covering the period from November 1986 through December 1990 that document the applicant's duties, demonstrated values, responsibilities, overall potential, and performance throughout this period;

	c.  five service school academic evaluation reports that document his completion of the Primary Leadership Development Course in October 1985, Army Pre-Commission Course (non-resident) in February 1986, Combat Engineer Basic Noncommissioned Officer Course (MOS 12B) (non-resident) in July 1986, Quartermaster/Chemical Equipment Repairer Course (MOS 63J) in March 1987, and Senior Utility Quartermaster/Chemical Equipment Repairer Basic Noncommissioned Officer Course (MOS 52C3O) (non-resident) in January 1989;

	d.  an ADAPCP Intake/Screening Record, dated 8 January 1990, that shows the applicant was a self-referral.  Item 5A (Diagnosis/Basis for Enrollment or Final Disposition) shows the applicant was enrolled in the program based on cannabis abuse.  Item 25 (Drug/Alcohol Usage Profile) shows the applicant's usage profile for alcohol and that he reported he never used drugs;

	e.  service medical treatment records (i.e., ADAPCP Psychiatry), dated 15 November 1990 and 3 January 1981 [sic], that document the applicant's ADAPCP treatment;

	f.  Bayne-Jones Army Community Hospital, Fort Polk, LA, laboratory test results for glucose, cholesterol, and triglycerides, dated 28 February 1989, 23 January 1991, and 30 January 1991.  The 23 January 1991 test results show a one-time elevated glucose result; however, all other results are within the normal ranges.

	g.  civilian medical treatment records primarily from the Onslow Memorial Hospital, Jacksonville, NC, covering the period from 13 July 1993 to 16 January 1994 that show the applicant was admitted to the intensive care unit with the diagnosis of diabetic ketoacidosis;

	h.  a VA Physician's Statement for Diabetes, dated 29 September 2008, that shows the applicant has a history of hypoglycemic episodes and that he was first diagnosed with diabetes in July 1992

	i.  frequently asked questions about pre-diabetes and cholesterol, triglycerides, and diabetes from the website:  www.diabetes.org; and

	j.  a VA Rating Decision, dated 15 July 2008, that shows the applicant was granted service connection for diabetes mellitus type 2 with early diabetic retinopathy and an evaluation of 20 percent effective 9 January 2008.  The VA Rating Decision, dated 8 May 2009, in pertinent part, shows the applicant was granted service connection for diabetic nephropathy with hypertension associated with diabetes mellitus type 2 with diabetic retinopathy, peripheral neuropathy bilateral upper and lower extremities, peripheral vascular disease bilateral lower extremities, and erectile dysfunction with an evaluation of 30 percent effective 19 March 2009; for tinnitus with an evaluation of 10 percent effective 13 February 2008; and for bilateral high-frequency hearing loss with an evaluation of 0 percent effective 30 January 2008.

13.  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 Soldiers 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.  Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required.  However, an honorable discharge is required if restricted-use information was used.

14.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA disability rating does not establish error or injustice in the Army separation process.  As a matter of information, 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 VA, 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 a different fitness determination/disability rating based on the same impairment.  Furthermore, unlike the Army, the VA 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 VA 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 records should be corrected to show he was medically discharged or retired based on permanent disability because his service medical treatment records document that he had elevated glucose levels which was an indicator that he was a diabetic at the time, he has bilateral high-frequency hearing loss, and the VA has granted him a disability rating for these service-connected conditions.

2.  On 30 November 1990, the ADCO, ADAPCP, Fort Polk, LA, confirmed the applicant was initially screened on 18 October 1990, evaluated as a self-referral for cannabis use, and enrolled in Track II on 8 November 1990.  At that time, the ADCO also confirmed that the applicant stated he continued to use marijuana while enrolled in the program and he had not followed through with his agreed upon treatment.  Despite the fact that the ADAPCP Client Intake/Screening Record, dated 8 November 1990, does not accurately document the applicant's marijuana usage at that time, the ADCO's written statement to the commander served to provide an update on the applicant's history and usage of cannabis.

3.  The applicant's medical treatment record for ADAPCP treatment shows an entry dated "3 January 1981."  It is noted that the applicant had not yet entered the U.S. Army on that date.  However, the applicant states that he was enrolled in the ADAPCP for a period of 49 days before he was declared a rehabilitation failure and discharged on 20 February 1991.  Thus, the applicant acknowledges he was enrolled in the ADAPCP on 3 January 1991.  Therefore, it is reasonable to conclude that the physician made an error when he wrote the year on the document and this error appears harmless in context with the applicant's other ADAPCP-related documents.

4.  Records confirm the applicant's honorable separation under the provisions of Army Regulation 635-200, chapter 9, based on drug abuse rehabilitation failure was administratively correct and in compliance with applicable regulations in effect at the time.  In addition, records show the applicant was properly and equitably separated from active duty.  Therefore, considering all the facts of this case, the applicant's separation from active duty was valid and appropriate.

5.  The applicant underwent a separation medical examination prior to his separation from active duty and the examining physician found the applicant qualified for separation.  Thus, there were no disqualifying mental or physical defects sufficient to warrant disposition of the applicant through medical channels at the time of his administrative separation.  Therefore, the applicant is not entitled to a medical discharge or medical retirement.

6.  The Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of military service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies), on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.

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.  Therefore, there is no basis for granting the applicant's 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)                                         AR20090012871



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ABCMR Record of Proceedings (cont)                                         AR20090012871



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