BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100027875 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* item 25 (Separation Authority) from "Army Regulation 635-200 (Personnel Separations), chapter 9" to something more favorable
* item 28 (Narrative Reason for Separation) from "alcohol rehabilitation failure" to something more favorable

2.  In addition, the applicant requests a personal hearing.

3.  The applicant states his discharge processing contained many discrepancies:

* he was an outstanding Soldier in initial training and during his military service
* the consumption of alcohol was common practice among noncommissioned officers in his unit
* his discharge was based on an erroneous enrollment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP)
* no proper medical assessment to enroll him was conducted
* his discharge was under duress because he was harassed by officials at the U.S. Army Criminal Investigation Command (CID) and forced to become an informant
* he lied about his drinking and subsequent enrollment in ADAPCP
* he only used cocaine once
* 
he was supposed to be protected by the Limited Use Policy
* he was not properly advised by his chain of command, the ADAPCP counselor, or the servicing legal office
* he was not given the opportunity for a discharge hearing since the narrative reason for his separation was negative
* the narrative reason for his separation stigmatizes him in the eyes of society

4.  The applicant provides no additional evidence.

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.  After having had prior service the applicant enlisted in the Regular Army on 29 April 1993 and held military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank and grade he attained during this period of service was specialist/E-4.

3.  He served in Germany from 12 May 1993 to 16 July 1994 during which time he deployed to Macedonia.  He was awarded the National Defense Service Medal, Humanitarian Service Medal, Overseas Service Ribbon, United Nations Medal, Joint Meritorious Unit Award, and Army Superior Unit Award.

4.  On 11 August 1995, a counselor and the clinical director of the Fort Myer ADAPCP stated by memorandum that:

	a.  The applicant was referred to the Community Counseling Center on 28 March 1995 for being in violation of company policy by having an illegal amount of alcohol in the barracks.  Six months prior he had passed out while in formation, allegedly due to alcohol, and he was treated for dehydration at the clinic.

	b.  He was evaluated by the clinic outpatient treatment facility on 29 March 1995.  He attended education classes on 10, 11, and 12 April 1995.  He was medically evaluated on 17 April 1995 by a military doctor and diagnosed with "alcohol abuse by history."  He was enrolled in ADAPCP on 20 April 1995 during a rehabilitation meeting with his commander.

	c.  His treatment plan required total abstinence from alcohol and other drugs, weekly attendance at an outpatient treatment group session, attendance at a minimum of one Alcoholics Anonymous meeting per week, one individual counseling session per month, compliance with the ADAPCP urinalysis testing policy, and random breathalyzer testing.

	d.  He reported to his command that he used illicit drugs while in the program and unit personnel stated he continued to use alcohol.  His inability to remain abstinent from alcohol and drugs and to comply with his treatment plan is indicative of a rehabilitation failure.  He was cleared for any administrative action designated by his command.

5.  On 29 August 1995, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation 635-200 for drug abuse rehabilitation failure.  Specifically, the immediate commander stated that the applicant was an ADAPCP Track II drug rehabilitation failure.

6.  On 29 August 1995, the applicant acknowledged receipt of the commander's intent to separate him.  On 30 August 1995, he consulted with counsel who advised him of the basis for the contemplated separation for drug abuse rehabilitation failure, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  The applicant indicated he understood he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He elected not to submit a statement on his own behalf.

7.  The applicant's immediate commander subsequently initiated separation action against the applicant in accordance with Army Regulation 635-200, chapter 9, by reason of drug rehabilitation failure.  The immediate commander indicated the applicant's conduct and performance had been unsatisfactory.  He had been counseled numerous times for his drug problems and he failed rehabilitation efforts.

8.  On 7 September 1995, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 9, with an honorable characterization of service.  The applicant was accordingly discharged on 14 September 1995.

9.  His DD Form 214 shows he was honorably discharged in accordance with chapter 9 of Army Regulation 635-200 by reason of drug rehabilitation failure.  This form shows he completed a total of 2 years, 4 months, and 16 days of creditable active service.  Item 26 (Separation Code) shows the entry "JPD."

10.  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 the Army Substance Abuse Program (ASAP) (ADAPCP at the time) 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.  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.  A Soldier who has less than 6 years of military service is not entitled to a board.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JPD" SPD code is the correct code for Soldiers separated under the provisions of chapter 9 of Army Regulation 635-200.

12.  Army Regulation 600-85 (The Army Substance Abuse Program) provides, in pertinent part, that the objective of the Limited Use Policy is to facilitate the identification of alcohol and other drug abusers by encouraging identification through self-referral.  In addition, the policy is designed to facilitate the treatment and rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention.  When applied properly, the Limited Use Policy does not conflict with the Army's mission or standards of discipline.  It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action.  Unless waived, limited use prohibits the use by the government of protected evidence against a Soldier in actions under the Uniform Code of Military Justice or on the issue of characterization of service in administrative proceedings.  Additionally, the policy limits the characterization of discharge to honorable if protected evidence is used.  Protected evidence under this policy includes a Soldier's self-referral to ASAP.  The Limited Use Policy does not preclude the initiation of disciplinary action based upon independently derived evidence, including evidence of continued drug abuse after initial entry into ASAP.  If the command is made aware of a Soldier's illegal drug use through the Soldier's self-referral and admissions, the requirement to initiate separation proceedings pursuant to the appropriate separation regulation will not apply.  The unit commander may initiate separation action; however, the information is protected by the Limited Use Policy.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant suffered from an alcohol and/or drug abuse problem.  Subsequent to an alcohol incident in the barracks, he was provided with the opportunity to overcome his problem through counseling and referral to and enrollment in the ADAPCP; however, he showed poor rehabilitation potential in that he tested positive for cocaine.  He was therefore declared an ADAPCP rehabilitation failure and accordingly his immediate commander initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  The applicant's narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 9 of Army Regulation 635-200 due to his alcohol and/or drug rehabilitation failure.  Absent the alcohol and/or drug rehabilitation failure, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his drug rehabilitation failure.  The only valid narrative reason for separation permitted under that paragraph is "drug rehabilitation failure" which is correctly shown on his DD Form 214.  Therefore, he received the appropriate narrative reason for separation.

3.  With respect to his request for a personal hearing, his request was carefully considered.  However, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

4.  With respect to his arguments:

	a.  At the time he was notified of separation processing on 29 August 1995, he had completed less than 6 years of active service (a little over 2 years).  By regulation, he was not entitled to a hearing or administrative separation board.

	b.  There is no evidence in his records and he did not provide any evidence that he was harassed by CID officials or forced to be an informant.

	c.  Contrary to his argument that there was no medical assessment, the clinical director indicated the applicant was medically evaluated on 17 April 1995 by a military doctor and the diagnosis was "alcohol abuse by history."

	d.  He was not protected by the Limited Use Policy since was enrolled in the ADACPC on 20 April 1995 during a rehabilitation meeting with his commander after a medical assessment determined he was an alcohol abuser by history.  His separation action was initiated because of his rehabilitation failure.

5.  Inasmuch as the applicant was discharged based on his drug rehabilitation failure, the reason and authority for discharge are correct as currently shown on his DD Form 214.  Therefore, he is not entitled to the requested 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 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)                                         AR20100027875



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ABCMR Record of Proceedings (cont)                                         AR20100027875



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