IN THE CASE OF:	  

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090013185 


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 honorable discharge by reason of alcohol rehabilitation failure be changed to an honorable discharge by reason of other designated physical or mental condition.  He further requests that based on a change to his narrative reason for separation, his reentry eligibility (RE) code should be changed from an RE-4 to an RE-2.

2.  The applicant states that the reasoning for the finding that he was an alcohol rehabilitation failure was incorrect for the following reasons:

	a.  The underlying reason for his consumption of alcohol was his Post-Traumatic Stress Disorder (PTSD);

	b.  His Army Substance Abuse Program (ASAP) counselor stated in a letter that he successfully completed the ASAP program in July 2008 and he felt he could be rehabilitated and he had the potential for continued service in the Army.  Therefore, he did not meet the criteria for separation due to alcohol rehabilitation failure which is the inability or refusal to participate in, cooperate in, or successfully complete a rehabilitation program;

	c.  After he was entered in the ASAP, his commander offered to buy him a beer and his battalion commander put him in charge of a beer keg during the battalion organizational fun day; and

	d.  His drinking never affected his duty performance as evidenced by statements from his direct superiors and his noncommissioned officer evaluation reports (NCOERs).

3.  The applicant provides, in support of his application, a letter from an Army substance abuse counselor, dated 11 August 2008; a memorandum for record from his first sergeant, dated 29 April 2009; a letter from his current employer, dated 29 April 2009; an undated letter from his mother to the Army Discharge Review Board (ADRB); an email from a former commander, dated 6 May 2008; a memorandum from his defense counsel, dated 4 June 2008; a memorandum from a military psychologist, dated 1 May 2009; and Department of Veterans Affairs (VA) medical documents which show that the applicant was diagnosed with PTSD-chronic, depression NOS [not otherwise specified], and alcohol abuse.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army (RA) on 26 July 1994.  He completed training and he was awarded military occupational specialty (MOS) 95B (military police).  He was subsequently promoted to rank/grade of sergeant first class (SFC)/E-7.

2.  On 25 February 2007, the applicant was arrested for fleeing the scene of an accident and driving while under the influence of alcohol (he had a blood alcohol level of 0.17 percent).  In March 2007 (stamped date illegible), the applicant was issued a General Officer Memorandum of Reprimand (GOMOR) for the incident and the GOMOR was ordered filed in his Official Military Personnel File (OMPF).

3.  On 30 November 2007, the applicant was arrested for driving under the influence of alcohol.  The applicant had failed the field sobriety test and when the police attempted to administer a breathalyzer test he would cough before the test was administered which invalidated the test results.  The applicant was given a GOMOR which was directed to be filed in his OMPF.

4.  On 14 January 2008, a mental status evaluation was conducted on the applicant.  The psychologist conducting the evaluation stated that the applicant had been diagnosed with depression in addition to alcohol dependence and he had been prescribed an antidepressant.  He further stated that the applicant's "depression improved with treatment but then worsened after he had prematurely discontinued his antidepressant medication.  He had been off his antidepressant medication approximately two months before his most recent alcohol-related incident."  The psychologist diagnosed the applicant as having depressive 
disorder and alcohol dependence and stated that the applicant met retention medical fitness standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and he was psychiatrically cleared for any administrative action deemed appropriate by the command.  There is no evidence that show the applicant was diagnosed with PTSD during his tenure of service.

5.  On 29 May 2008, a board of officers was convened to determine whether the applicant should be separated due to alcohol rehabilitation failure.  The applicant and his counsel were present at that hearing.  During the board of officer's consideration, it was established that the applicant had been enrolled in the ASAP after his first arrest for driving under the influence of alcohol.  The alcohol and drug counselor assisting the applicant testified that the applicant had been attempting to get control of his drinking problem for 7 years and stated "…There comes a point in time when the Army has to consider if there is any more that can be done….We have attempted to help [the applicant] solve his problem.  I have to determine that if we spend more time, efforts, and money on him will he recover.  I don't feel that the chances are very good.  It is important that the individual accept his condition that he cannot drink."  The board of officers found "By a preponderance of the evidence, that required rehabilitative efforts have not been made, further rehabilitation efforts are not practical, rendering [the applicant] a rehabilitation failure and [the applicant's] potential for fully effective service is substantially reduced by alcohol abuse.  The facts taken into consideration under this inquiry were that [the applicant's] dedication to ASAP was not fully realized until faced with separation from the military and that based on his exemplary service record, an honorable discharge will be recommended."  It further determined that the decision to recommend separation was not based on a finding of guilt in civil court or the GOMOR but on the fact that the applicant was involved in two alcohol-related incidents and that the second incident occurred while he was enrolled in ASAP.

6.  The board of officer's recommendation was approved by the appropriate separation authority.  Accordingly, the applicant was honorably discharged on
5 August 2008 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 9, by reason of alcohol rehabilitation failure.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that he was honorably discharged with a separation code of "JPD" and a reentry eligibility code of "4."

7.  On 15 May 2009, the applicant was notified that the Army Discharge Review Board (ADRB) denied his request to change the reason and authority for his discharge.

8.  Army Regulation 635–200, paragraph 5–17 (Other designated physical or mental conditions), states that commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability under Army Regulation 635–40 (Physical Evaluation for Retention, Retirement, or Separation) that potentially interfere with assignment to or performance of duty.  This paragraph states that if PTSD, Traumatic Brain Injury (TBI), and/or other co-morbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph, but will be evaluated under the physical disability system in accordance with Army Regulation 635-40.

9.  Army Regulation 635–200, chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), paragraph 9–1, provides the authority and outlines the procedures for discharging Soldiers for alcohol or other drug abuse rehabilitation failure.  Discharge under this chapter is based upon alcohol or other drug abuse such as illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug when the Soldier is enrolled in the ASAP and the commander determines that further rehabilitation efforts are not practical, rendering the Soldier a rehabilitation failure.  This determination will be made in consultation with the rehabilitation team.   Paragraph 9–2 (Basis for separation) states that a Soldier who is enrolled in the ASAP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program in one of the following circumstances:

   a.  There is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.

   b.  Long term rehabilitation is necessary and the Soldier transferred to a civilian facility for rehabilitation.

10.  Army Regulation 635-200 further states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-2 applied to Soldiers separated for the convenience of the Government under Army Regulation 635-200, chapter 5, whose reenlistment is not contemplated.  However, this code was discontinued in March 1995.

	c.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	d.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

11.  Army Regulation 635-5-1 (SPD Codes) provides 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 states, in pertinent part, that SPD code "JPD" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 9, by reason of alcohol rehabilitation failure.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JPD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant could not be processed for separation under Army Regulation 635-200, paragraph 5–17, since that paragraph specifically states that Soldiers who suffer from PTSD will not be processed under that authority.  Members who suffer from PTSD are referred to the disability evaluation system.  The applicant was determined medically qualified with no diagnosis of PTSD.

2.  The applicant argues that the statements he provides and his performance history while on active duty will show that he did not lack the potential for continued Army service and rehabilitation efforts were practical.  In this regard, the drug and alcohol counselor who was treating him stated that the applicant's chances of remaining alcohol-free were not very good.  The board of officers who recommended his separation stated that the applicant did not take the ASAP seriously until his military career was in jeopardy.

3.  Based on the applicant's 7-year history of alcohol problems; his arrest for driving while under the influence of alcohol; his second arrest for driving under the influence of alcohol while he was enrolled in ASAP; his drug and alcohol counselor's assessment of his poor chances of remaining alcohol-free; and the military psychologist's finding that the applicant used alcohol to control his depression and the applicant discontinued his medication against medical advice; it is evident that the applicant's board of officers based its findings and recommendation on the preponderance of evidence.

4.  The applicant has not submitted any evidence to show that after he was entered in ASAP his commander offered to buy him a beer and his battalion commander put him in charge of a beer keg during the battalion organizational fun day.  However, even if he had, this would not negate the appropriateness of his separation.

5.  While the applicant's records show that he had remarkable performance of duties associated with his MOS, a Soldier's performance is evaluated on what he/she does both on- and off-duty.  The applicant's off-duty behavior and conduct was not in keeping with the high standards of the noncommissioned officer corps.

6.  Based on the foregoing, there is no basis to grant the applicant's request to change the reason and authority for his discharge and to change his RE-4 to a more favorable RE code.

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)                                         AR20090013185



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ABCMR Record of Proceedings (cont)                                         AR20090013185



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