IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100000886 


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 under Army Regulation 635-300 (Personnel Separations - Enlisted Personnel), chapter 9, for alcohol or other drug abuse be corrected to show he was medically discharged.

2.  The applicant states he feels his discharge should have been a medical discharge due to the fact his mother was stabbed to death just prior to his entry into the service and when he was sent overseas he suffered from severe depression and he self-medicated.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 10 December 1980 for a period of 4 years.  His enlistment contract notes his mother was deceased and that he was enlisting for training as a cannon crewman, assignment to Europe, and a $2,500.00 enlistment bonus.

3.  The applicant successfully completed training and in March 1981 he was assigned to a field artillery unit in Germany in accordance with his enlistment contract.

4.  In May 1981 he was advanced to pay grade E-2 after receiving a waiver for time in grade and time in service requirements.  By 10 December 1981 he had been advanced to pay grade E-3.

5.  On 31 December 1981 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for possession of marijuana.  His punishment included reduction to pay grade E-1, which was suspended.  However, on 10 February 1982, the suspended reduction to pay grade E-1 was vacated and the applicant was accordingly reduced.

6.  In August 1982 the applicant’s unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, chapter 9.  The commander cited the applicant’s inability to conform to the rules and regulation set forth by the unit and the Army.  The commander stated that while the applicant had not had a positive drug test since his enrollment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) rehabilitation program, his personal comments and indications showed a disinterest in rehabilitation.  He noted the applicant showed little desire to progress within the program and his duty performance was marginal at best.  The commander noted in a separate statement that during discussions with the applicant he revealed his previous efforts to get out of the Army over the past 2 years.

7.  The applicant acknowledged receipt of the proposed separation action, consulted with counsel, and waived his attendant rights, including the right to submit a statement in his own behalf.

8.  The applicant underwent a mental status evaluation on 14 September 1982 which found:

* his behavior was normal
* he was fully alert and oriented
* his thought process was clear and normal


* he was mentally responsible
* he met medical retention requirements

9.  During the applicant’s medical examination, conducted in September 1982, he made no mention of any depression or nervous trouble of any sort.  He stated his health was good and he was taking no medication.  The evaluating physician noted there was no significant mental illness and found him medically qualified for administrative separation.

10.  The appropriate separation authority approved the commander’s recommendation.  On 16 September 1982 the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 9, with an honorable discharge.  He completed 1 year, 9 months, and 7 days of active service.

11.  References:

   a.  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 an ADAPC Program 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.  The regulation provided for issuance of an honorable or general discharge.

	b.  Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

   c.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of 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, rank, or rating.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

   d.  The same regulation states that commanders may refer members to the servicing medical treatment facility for medical evaluation when it is believed that the member is unable to perform the duties of his office, grade, rank, or rating because of physical disability.  Commanders of medical treatment facilities who are treating patients in an assigned, attached, or outpatient status may also initiate action to evaluate a member’s physical ability to perform the duties of his office, grade, rank, or rating.

   e.  It further states that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant argues his discharge should have been for medical reasons because his “self-medication” was related to severe depression stemming from his mother’s death, the available evidence does not support that argument.

2.  The applicant made no statements during his separation processing and both his mental status evaluation and separation physical examination found no mental defects, no indication he was suffering from depression, or that his use of alcohol and drugs was in any way related to his mother’s death.

3.  The evidence shows the applicant was discharged as a result of his inability to live up to the expectations of a Soldier and not as a result of any disabling medical condition.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, 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)                                         AR20100000886



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)