IN THE CASE OF:	  

		BOARD DATE:	    28 February 2012

		DOCKET NUMBER:  AR20110017088 


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 general discharge under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), "chapter 13," be changed to a medical discharge.

2.  He states he did not know he had a medical condition.  Doctors now know that sleep apnea, mental conditions, and depression can cause Soldiers to act contrary to Army standards.  They did not know this at the time of his service.

3.  The applicant provides a self-authored statement and page 2 of his DA Form 2-1 (Personnel Qualification Record).

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.  On 19 March 1979, the applicant enlisted in the Regular Army for a period of 4 years.  On 18 February 1983, he reenlisted for a period of 3 years.  He was promoted to sergeant/E-5 effective 1 August 1983.

3.  His record shows he was counseled on numerous occasions for missing/being late for formations and being absent from his appointed place of duty during the period November 1983 to May 1984.

4.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice:

	a.  on 15 December 1983, for failing to go at the time prescribed to his appointed place of duty on 18 November 1983;

	b.  on 11 February 1984, for willfully disobeying a lawful order from a superior noncommissioned officer (NCO) on 13 January 1984; and

	c.  on 9 April 1984, for failing to go at the time prescribed to his appointed place of duty twice on 15 March 1984 and twice on 19 March 1984.

5.  On 27 April 1984, the Clinical Team Director, Baumholder Community Counseling Center (BCCC), Baumholder Military Community, Germany, responded to a request for information from the applicant's commander pertaining to the applicant's rehabilitation activities.  The Clinical Team Director informed his commander, in part, the applicant had enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 9 April 1984 as a self-referral due to a drinking problem.  His progress was determined to be poor as he was asked to leave a seminar at the ADAPCP facility on 19 April 1984 after alcohol was detected on his breath.  The Clinical Team Director informed the commander the applicant's potential for successful rehabilitation was minimal at that time in light of the recent incident.

6.  On 2 May 1984, he underwent a mental status evaluation.  The evaluation revealed no significant mental illness and found he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

7.  On 21 June 1984, his commander informed him he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel 


Separations – Enlisted Personnel), chapter 9, due to failing the BCCC program.  His commander also notified the applicant he was recommending receipt of an Honorable or General Discharge Certificate.  On the same date, the applicant acknowledged he had been notified of the action to discharge him.

8.  He consulted with legal counsel and was advised of the basis for his contemplated separation action, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

9.  On 22 June 1984, he requested a personal appearance before the battalion commander, a rehabilitative transfer, retention on active duty, and a "European out" if discharged.  On the same date, he stated he was "rehabilitated for alcohol abuse" and had not abused alcohol since his failure of the BCCC.  He stated he finished [the BCCC] seminars and his counselor said he was progressing very well, but she was not allowed to make a written statement.  He also stated he had been transferred between batteries in his battalion, but Army Regulation 635-200 stated a rehabilitative transfer was at least between battalions.  He stated he felt he was treated unfairly because he was not transferred to a different battalion.

10.  On 27 June 1984, the separation authority approved his discharge and directed issuance of a General Discharge Certificate.  On 6 July 1984, he was discharged accordingly.  He completed 5 years, 3 months, and 18 days of net active service.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* in item 25 (Separation Authority) – "Army Regulation 635-200, chapter 9"
* in item 26 (Separation Code) – "JPD"
* in item 28 (Narrative Reason for Separation) – "alcohol abuse – rehabilitation failure"

12.  His service medical records are not available for review.

13.  His record is void of documentation showing he was diagnosed with sleep apnea, depression, or any other mental condition.


14.  In his self-authored statement, dated 15 August 2011, he states:

	a.  After he was reassigned to Germany, his medical condition became more evident.  He had been struggling with depression and sleep apnea, but did not know that was why he was always feeling exhausted and fatigued.  Instead of helping him to cope with these diseases, his chain of command harassed and punished him.

	b. He joined a Masonic Lodge, but decided it wasn't for him.  He was harassed by his first sergeant and other NCO's who were Masons because he did not participate in Mason activities.  This is one of the reasons he became depressed and ill.  He began to drink alcohol to deal with his depression.

	c.  He should have been discharged for medical reasons.  His condition has become worse, with a hip condition caused by a lack of oxygen in the blood.  He has chest pain caused by either sleep apnea or pneumonia he suffered while in the service.  He attended basic training at Fort Sill, OK, and the Primary NCO Course (PNCOC) at Fort Campbell, KY, during the winter.  His doctor says there is a scar on his lung caused by pneumonia.  There were also a number of incidents that happened in the field where medical records were not kept.

	d.  His unit discharged him for alcohol rehabilitation failure after treatment consisting of 2 weeks of class and medication that did not work for him.  He should have been treated for depression and sleep apnea at that time.

	e.  His records show:

* he received the Army Good Conduct Medal and Jungle Expert Badge
* he reenlisted
* he attended the Primary Leadership Development Course, PNCOC, Recondo Course, Basic NCO Course, Air Assault School, and Jungle Operations Training

15.  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 ADAPCP 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.  Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other 


provisions of this regulation.  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 an entry-level status and an uncharacterized description of service is required.

16.  Army Regulation 40-501 establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.  Chapter 3 lists medical conditions and physical defects which may render a Soldier unfit for further military service.  The version of the regulation in effect at the time did not name sleep apnea or depression as conditions unfitting for retention.

DISCUSSION AND CONCLUSIONS:

1.  The record shows the applicant engaged in behavior that led his chain of command to the reasonable conclusion that he failed ADAPCP which warranted his discharge under the provisions of Army Regulation 635-200, chapter 9.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  There is no documentary evidence showing he had any medical conditions that rendered him unfit for retention.  Prior to his discharge processing, he underwent a mental status evaluation which revealed no significant mental illness and found he met retention standards.

3.  In view of the foregoing, there is no basis for correcting his record to show he received a medical discharge.

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)                                         AR20110017088



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ABCMR Record of Proceedings (cont)                                         AR20110017088



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