IN THE CASE OF:	  

		BOARD DATE:	    15 September 2011

		DOCKET NUMBER:  AR20110004708 


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 discharge be changed to show that the reason for his discharge was by reason of physical disability or medical retirement. 

2.  The applicant states that he should have been discharged by reason of physical disability or medically retired.  He further states that he became addicted to drugs while on active duty and was discharged to a Department of Veterans Affairs (VA) hospital in Temple, Texas with the Army’s knowledge that he still had and has an addiction to drugs, which is a serious illness.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty). 

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 in Montgomery, Alabama on 22 January 1973 for a period of 4 years, a cash enlistment bonus, training as a cannoneer, and assignment to the 3d Infantry Division in Europe.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training at Fort Sill, Oklahoma before being transferred to Germany on 19 June 1973.

3.  He was advanced to the pay grade of E-4 on 6 April 1974.  He completed his tour in Germany on 15 September 1975 and was transferred to Fort Hood, Texas. 

4.  On 26 October 1976 he reenlisted for a period of 3 years and assignment to the 1st Cavalry Division at Fort Hood. 

5.  On 22 January 1977 nonjudicial punishment was imposed against him for the wrongful possession of marijuana.  

6.  On 5 December 1977 a suspension of favorable personnel actions (Flag) was initiated against the applicant based on his pending civil charges of possession of marijuana and theft by check.  

7.  On 6 June 1977 the applicant was enrolled in the Alcohol Drug Abuse Prevention and Control Program (ADAPCP).  

8.  On 9 February 1978 nonjudicial punishment was imposed against him for failure to go to his place of duty and being derelict in the performance of his duties. 

9.  Meanwhile, the applicant was admitted to the hospital for alcohol and drug treatments and remained there until 1 March 1978.

10.  On 16 March 1978 the applicant was declared a rehabilitation failure of the ADAPCP.   On 23 April 1978, he underwent a separation medical examination and was deemed fit for separation.

11.   On 24 April 1978 the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 9, due to being declared a rehabilitation failure. 

12.  The applicant was confined by civil authorities from 23 May to 19 June 1978. 

13.  The appropriate authority approved the recommendation for discharge and on 13 July 1978 he was honorably discharged under the provisions of Army Regulation 635-200, chapter 9, due to drug and alcohol rehabilitation failure.  He had served 5 years, 4 months and 24 days of total active service and had 28 days of lost time due to civil confinement.

14.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for a change to the narrative reason for his separation within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 of that regulation contains the authority and outlines the procedures for discharging individuals because of alcohol and/or drug abuse.  A member may be separated because of inability or refusal to participate in, or successfully complete a rehabilitation program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Characterization of service will be determined solely by the Soldier’s military record that includes the Soldier’s behavior and performance during the current enlistment.

16.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  According to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  

 DISCUSSION AND CONCLUSIONS:

1.  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 this requirement.

2.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no evidence of any violations of the applicant’s rights.  Accordingly, he was given the proper narrative reason for his separation  required by the applicable regulations. 
  
3.  The applicant has failed to show through the evidence submitted with his application and the evidence of record any evidence to show that he was unfit to perform the duties of his military occupational specialty (MOS) or that he was not fit for separation.  

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.  

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)                                         AR20110004708





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ABCMR Record of Proceedings (cont)                                         AR20110004708



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