IN THE CASE OF:	  

		BOARD DATE:	    9 September 2010

		DOCKET NUMBER:  AR20100009532 


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 narrative reason for separation be changed from drug abuse-rehabilitation failure with a separation program designator (SPD) code of JPC to "disability aggravation, involuntary with an SPD code of JFQ.  

2.  The applicant states the following:

* The narrative reason for separation "drug abuse-rehabilitation failure" was assigned in error and without merit
* His physical injuries caused him to become medically unfit as a combat armorer/field supply specialist
* His local command failed to complete a full medical evaluation and process him through the physical evaluation board (PEB)
* His platoon sergeant coerced him into taking a discharge under the provision of chapter 9, Army Regulation 635-200
* His unit’s command was going through multiple leadership changes
* There was never any nonprescription drugs or alcohol abuse on record 
* There was no attempt made by his unit to enroll him in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) 
* He would have continued to serve proudly until his service end date if it had not been for his medical condition that was sustained as a result of his military service



3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* DD Form 4/1 (Enlistment/Reenlistment Document –Armed Forces of the United States)
* Standard Form 93 (Report of Medical History)

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 1 April 1983 for a period of 
3 years.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 76Y (unit supply specialist).  

3.  A memorandum, dated 18 January 1984, shows the company commander stated the following:

   a.  The applicant would never submit to rehabilitation and it would be in the best interest of the Army to eliminate him under the provisions of Chapter 9, Army Regulation 635-200.  

   b.  The applicant stated during counseling that he had been using marijuana, had no intention of enrolling in the DARE program, or to stop using the controlled substance.
   
	c.  The applicant had been given the opportunity to change his behavioral patterns; however, he was unwilling to do so as evidenced by his refusal to enroll in the ADAPCP and stop abusing drugs.

4.  The applicant’s service medical records show he received treatment for foot pain (October 1983), pain in his left calf (November 1983), and a sore right shoulder due to buffing floors in January 1984.  

5.  On 18 January 1984, the company commander notified the applicant of pending separation action under the provisions of Army Regulation 635-200, chapter 9 based on drug abuse rehabilitation failure.  He was advised of his rights.  The applicant acknowledged notification, consulted with legal counsel, and did not submit statements in his own behalf.

6.  On 20 January 1984, a Clinical Director at Community Counseling Center indicated the following:

   a.  The applicant referred himself through his chain of command to the Community Counseling Center for marijuana abuse.

   b.  He was screened by an ADAPCP Counselor during an intake interview on 
10 January 1984.

   c.  A rehabilitation team meeting was held on 16 January 1984 at which time the applicant stated to his commander that he refused to participate in the recommended Track I program.

   d.  The applicant's prognosis for rehabilitation or continued efficiency in the military was determined to be poor due to lack of motivation.

7.  On 20 January 1984, the applicant underwent a medical examination and was cleared for separation.  He was given a physical profile of 111321.  

8.  On 2 February 1984, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 9 with service characterized as general under honorable conditions.  

9.  On 8 February 1984, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9 for drug abuse-rehabilitation failure.  He had served 10 months and 8 days of active military service.  He was assigned an SPD code of "JPC" due to Drug Rehabilitation Failure.

10.  On 18 January 1990, the Army Discharge Review Board upgraded the applicant’s discharge from general under honorable conditions to honorable.  


11.  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 the Alcohol and Drug Abuse Prevention and Control 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.

12.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The regulation shows the SPD code of “JPC” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Drug Rehabilitation Failure” and that the authority for discharge under this SPD is “Army Regulation 635-200, chapter 9."

13.  Army Regulation 635-5-1 (SPD Codes) shows the SPD code of “JFQ” specifies the narrative reason for an involuntary separation as “Disability Aggravation” and the authority for discharge under this SPD is Army Regulation 635-40, paragraph 4-24b(3).

14.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): 
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions in regard to his chain of command are acknowledged.  However, they are not supported by the evidence of record.  The applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 9, for drug abuse-rehabilitation failure was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  The available evidence shows that prior to the applicant's separation in February 1984 competent medical authority determined he was medically qualified for separation with a physical profile of 111321.  

3.  Based on Army Regulation 40-501, numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  The evidence of record does not indicate he was unable to perform his duties as an armorer or unit supply specialist.  

4.  The applicant contends there was never any nonprescription drug or alcohol abuse on record or any attempt by the unit to enroll him in the ADAPCP.  However, the available evidence shows he referred himself through his chain of command to the Community Counseling Center due to marijuana abuse.  He was screened by an ADAPCP Counselor at an intake interview.  During a rehabilitation team meeting, he stated to his the counselor and his commander that he was refusing to participate in the recommended Track I program and that he had no intention to stop using marijuana.

5.  The applicant contends he would have continued to serve proudly until his service end date if it had not been for his medical condition.  However, there is no evidence which indicates his military career was ended due to medical unfitness.  

6.  The available evidence shows the applicant was discharged due to drug abuse-rehabilitation failure.  His statements were reviewed carefully.  However, he has failed to show through the evidence submitted or the evidence of record that his narrative reason for separation is in error or unjust or that his SPD code should be changed.

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)                                         AR20100009532



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ABCMR Record of Proceedings (cont)                                         AR20100009532



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