IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090013395 


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 his discharge status be changed from alcohol abuse-rehabilitation failure to a medical discharge.

2.  The applicant states that due to the events and experiences during his active duty service, he became an alcoholic and was discharged for failure to rehabilitate.  

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he enlisted in the Regular Army for a period of 4 years on 7 May 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty 74F (Programmer/Analyst).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4. 

3.  The applicant's records also show he served in Germany from on or about 27 October 1987 to 29 March 1988 and he was awarded the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  On 29 December 1987, the applicant was arrested by the military police for an alcohol-related incident at the Enlisted Club where he had caused a disturbance and received a breathalyzer reading in conjunction with the incident.  He was subsequently referred to the Community Counseling Center, Augsburg, Germany, for an evaluation due to his arrest. 

5.  On 5 January 1988, the applicant underwent an initial screening and/or evaluation at the Community Counseling Center, Augsburg and he was found to be very resistant and it was determined that he at least merited alcohol education/rehabilitation.  Based on the evaluation results, the rehabilitation team, including the unit commander, applicant, counselor, and others, determined that the applicant had problems significant enough to warrant enrollment in Track II of the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

6.  On 19 January 1988, during an interview with his immediate commander, the applicant indicated that he did not want to be enrolled in the ADAPCP. 

7.  On 8 February 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language towards a superior noncommissioned officer (NCO) at the Enlisted Club.  His punishment consisted of 14 days of restriction.

8.  On 6 March 1988, the applicant was involved in an alcohol-related incident when he walked into the unit one evening in an intoxicated state and punched the door with his hand, causing damage to his hand and the door.  He also made disrespectful and threatening remarks to the charge of quarters NCO. 

9.  On 11 March 1988, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful command from his commanding officer not to consume any alcohol while enrolled in the ADAPCP on 5 March and 
6 March 1988 and for being disrespectful in language towards a superior NCO on or about 6 March 1988.  His punishment consisted of a reduction to private/E-2, a forfeiture of $176.00 pay for 1 month, 14 days of restriction, and 14 days of extra duty.

10.  On 15 March 1988, the Clinical Director of the Community Counseling Center issued a Summary of Rehabilitative Efforts Report to the applicant's immediate commander which stated that the rehabilitation team met on 14 March 1988 and it was determined the applicant had not complied with the requirements of his treatment plan as outlined as he had been involved in a subsequent alcohol–related incident on 6 March 1988.  He incurred a personal injury and required emergency medical treatment.  Thus, the applicant had demonstrated poor motivation towards treatment.  He had not made satisfactory progress towards achieving the criteria for successful rehabilitation.  Therefore, it was determined that further rehabilitation efforts in a military environment were not justified in light of the applicant’s lack of motivation.  The applicant was declared a rehabilitation failure.  The applicant’s immediate commander concurred with the clinical director on 15 March 1988.

11.  On 17 March 1988, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation (AR) 635-200 (Personnel Separations) for alcohol rehabilitation failure.  The immediate commander cited the specific reasons for this action was the applicant continued to abuse alcohol while he was enrolled in the ADAPCP.  

12.  On 18 March 1988, the applicant acknowledged receipt of the commander's intent to separate him.  On the same date he was advised by counsel of the basis for the contemplated separation action, of the type of discharge he could receive, its effect on further enlistment or reenlistment, the possible effects of such a discharge, and of the procedures/rights that were available to him.  He acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and he elected to submit a statement on his own behalf.

13.  On 21 March 1988, by endorsement, the applicant’s immediate commander indicated that he reviewed the statements submitted by the applicant along with his election of rights and that he was still recommending that the applicant be issued a General Discharge Certificate.  He stated that his recommendation was based on the fact that the applicant knew the consequences of failure due to the counseling he received at the Community Counseling Center and that he willfully went out and consumed alcoholic beverages so he would be declared a rehabilitation failure.  The immediate commander further indicated that the applicant freely admitted during an Article 15 hearing that he had planned to drink alcoholic beverages on 6 March 1988 and had done so.  He had shown no remorse for his actions and he refused the assistance from the Community Counseling Center.  He was essentially using the system to get out of his obligation towards his country and should not be rewarded by an honorable discharge. 

14.  On 23 March 1988, the applicant’s immediate commander initiated separation action against him in accordance with chapter 9 of AR 635-200 by reason of alcohol abuse-rehabilitation failure.

15.  On 23 March 1988, the separation authority approved the applicant’s discharge under the provisions of chapter 9 of AR 635-200 and directed the applicant be furnished a General Discharge Certificate.  

16.  The applicant was accordingly discharged on 30 March 1988.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a characterization of service of under honorable conditions (general) by reason of alcohol abuse-rehabilitation failure.  He had completed a total of 1 year, 10 months, and 24 days of creditable active military service.

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

18.  AR 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 (emphasis added).  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.

19.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which 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 qualifications for retention based on the criteria in chapter 3 of AR 40-501 (Standards of Medical Fitness).  

20.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

21.  AR 40-501 does not list alcoholism as a condition that requires referral to an MEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation should be changed from alcohol abuse-rehabilitation failure to a medical discharge.

2.  The evidence of record shows the applicant suffered from an alcohol abuse problem.  He was provided multiple opportunities to overcome his problem including counseling and referral to and enrollment in the ADAPCP subsequent to an alcohol-related incident.  However, he showed poor rehabilitation potential and was involved in yet another alcohol-related incident.  He was therefore declared an alcohol abuse-rehabilitation failure and accordingly his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not seem to be an error or an injustice in his discharge.

3.  The applicant was discharged under the provisions of chapter 9 of AR 
635-200 due to alcohol abuse-rehabilitation failure.  Absent his rehabilitation failure, there was no fundamental reason to process the applicant for discharge.  The only valid narrative reason for separation permitted under this paragraph is "Alcohol Abuse - Rehabilitation Failure."

4.  With respect to a medical discharge, there is no evidence in the available records and the applicant failed to submit any evidence that shows he suffered from a medical condition that limited his ability to perform in his grade and MOS or that would have warranted entry into the PDES.  Alcoholism is not a condition that required referral to an MEB.  Therefore, he was not considered by a MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge for physical disability.

5.  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 failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090013395



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ABCMR Record of Proceedings (cont)                                         AR20090013395



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