IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110002296 


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) to show he received a medical discharge.

2.  The applicant states, in effect, he was released from the military in 1984 having served less than 2 years on active service and therefore is not eligible for Veterans Affairs (VA) health care benefits.  He contends he was treated in the military for a lower back injury during basic training.  He has been a model citizen but his health conditions made it difficult to seek employment and health treatment.

3.  The applicant provides his DD Form 214.

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 16 March 1983.

3.  On 22 March 1984, he received a General Officer Letter of Reprimand for operating a vehicle with a blood alcohol content of .16 percent.

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on 17 April 1984 for knowingly and wrongfully using marijuana. 

5.  On 16 May 1984, he was enrolled in Track II of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) at Fort Lewis, WA.

6.  On 29 May 1984, he accepted nonjudicial punishment under Article 15, UCMJ, for a second time for being incapacitated for the proper performance of his duties and failing to go at a prescribed time to his appointed place of duty.

7.  On 8 June 1984, his commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200, chapter 9, because the applicant failed to comply with treatment plans and goals.  Evidence indicated continued use of alcohol and cannabis.  

8.  The commander advised him of his right to submit statements in his own behalf, to obtain copies of all documents used in the preparation of his separation packet, and to consult with and be represented by military or civilian counsel.  He was also advised he could waive any of these rights and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  He elected to have legal counsel for consultation, not to submit statements on his own behalf, and declined treatment in a VA medical center.

9.  On his Standard Form 93 (Report of Medical History), dated 30 March 1984, the applicant wrote "Injured my back in Basic, and has been hurting off and on."  In addition, he indicates in item 15d, "I fell [sic] that part of the reason I am getting chaper [sic] is my job performance because of frequent back trouble."  The military physician found him qualified for separation.

10.  The record does not contain the separation authority's approval, but does shows he was discharged under the provisions of Army Regulation 635-200, chapter 9 (Alcohol Rehabilitation Failure) on 10 July 1984 and he receive an Under Honorable Conditions (General) Discharge Certificate.



11.  His DD Form 214 shows at the time of his separation he had completed 
1 year, 7 months, and 25 days of total active service.  Item 26 (Separation Code) shows the entry "JPD."  Item 28 shows the entry "Alcohol Abuse Rehabilitation Failure."

12.  There is no indication in the available records that his back injury warranted his entry into the Physical Disability Evaluation System (PDES).

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  It states for Item 28, enter the reason for separation based on the regulatory or statutory authority.

14.  Army Regulation 635-5-1 (Separation Program Designator (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 the 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.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

16.  Army Regulation 635-40, paragraph 2-2b(1), in effect at the time, provided that when a member was separated by reasons other than physical disability, his or her continued performance of assigned duty appropriate with his or her rank or 
grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.  The applicant requests correction of his DD Form 214 to show he received a medical discharge.

2.  There is no evidence in the available records and he did not provide any evidence, to show his back injury was determined to be an unfitting medical condition or that he should have been referred to the Army PDES for consideration by either an MEB or a PEB prior to his administrative discharge.  

3.  Records confirm he was separated under the provisions of Army Regulation 635-200, chapter 9, based on alcohol rehabilitation failure.  In addition, the governing separation regulations confirm that the narrative reason for his discharge is valid and appropriate based on his approved separation.

4.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

5.  In view of the foregoing, his request should be denied.

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)                                         AR20110002296





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ABCMR Record of Proceedings (cont)                                         AR20110002296



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