IN THE CASE OF:	   

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120005822 


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, in effect, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show in block 26 a separation code of “JBK,” in block 27 a Reentry (RE) Code of “2,” and in block 28 a Narrative Reason for Separation of “Completion of Required Service.”

2.  The applicant states that he was suffering from post-traumatic stress disorder (PTSD) and was never treated for obvious symptoms that were occurring at the time.  Instead, he was diagnosed with and treated for alcoholism.  As a recruiter he requested to speak with a psychiatrist and was told it was not a good idea for recruiters to be seen speaking with a psychiatrist.  He goes on to state that he requested to go back to the regular Army for treatment.  His request was denied and he was sent to programs that dealt only with his alcohol issues.

3.  The applicant provides a copy of his Department of Veterans Affairs (VA) Rating Decision, a 15-page letter explaining his application, third-party statements of support, copies of commendatory documents from his official records, copies of his evaluation reports, orders, and photographs.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board conduct an equitable review of his application

2.  Counsel states that the applicant’s application and supporting documents amply advance the issues in his application.
3.  Counsel provides no additional documents. 

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 21 October 1988.  He completed his training as a food service specialist and remained on active duty through a series of continuous reenlistments.  He deployed to Southwest Asia (SWA) in support of Operation Desert Shield/Storm during the period of             28 August 1990 – 28 March 1991.

3.  On 27 September 1993, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a senior noncommissioned officer (NCO), assaulting a senior NCO, and violating a lawful policy by consuming alcohol in a training area.

4.  He was promoted to the pay grade of E-6 on 1 August 1997.  On 21 April 1998, he was prescribed “Antabuse” for his alcohol problem.  Antabuse was the first medicine approved for the treatment of alcohol abuse and alcohol dependence.  On 14 September 1998, he was assigned as a field recruiter in New York.  

5.  On 25 March 1999, the applicant was enrolled in Track III of the Alcohol and Drug Abuse Prevention Control Program (ADAPCP).  He attended the resident phase of the ADAPCP at Fort Gordon, Georgia from 26 July to 26 August 1999.

6.  The applicant went on an alcohol binge from 8 October to 12 October 1999, and on 25 October 1999 he was declared an alcohol rehabilitation failure.

7.  On 13 November 1999, NJP (field grade) was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-5.
8.  On 19 November 1999, 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, by reason of alcohol rehabilitation failure.
 
9.  After consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive consideration by an administrative separation board in return for a characterization of service of no less than honorable.

10.  On 3 March 2000, NJP (field grade) was imposed against the applicant for being absent from his unit from 1 February to 5 February 2000.  His punishment consisted of a reduction to the pay grade of E-4.

11.  On 5 April 2005, the appropriate authority approved his request for a conditional waiver and the recommendation for discharge and directed that he be furnished an Honorable Discharge Certificate.  Although not contained in the available records, the administrative separation proceedings approved by the approving authority indicate that one of the enclosures was a mental status evaluation.

12.   Accordingly, he was honorably discharged in the pay grade of E-4 on        21 April 2000, under the provisions of Army Regulation 635-200, chapter 9, due to alcohol rehabilitation failure.  He was issued a separation code of “JPD” which indicates alcohol rehabilitation failure, an RE Code of “4,” and a narrative reason for separation of “Alcohol Rehabilitation Failure.”  He had served 11 years, 5 months, and 20 days of active service.  His expiration of term of service (ETS) was 30 August 2000.

13.  On 25 April 2004, he applied to the Army Discharge Review Board (ADRB) for a change in his separation code, RE code and narrative reason for separation.  The applicant was granted a personal appearance before that board in Washington, D.C. on 11 July 2005 and appeared with counsel.

14.  After hearing testimony from both the applicant and his counsel and reviewing all of the available evidence in his case, the ADRB determined that his discharge and the reasons therefore were both proper and equitable and voted to deny his case.

15.  On 29 January 2010 the VA granted the applicant service connection for  PTSD effective 24 November 2003.

16.  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 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.  An honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.  

17.  Pertinent Army regulations provide that prior to discharge or release from active duty individuals will be assigned RE codes, based on their service records or reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

18.  RE-4 applies to persons not qualified for continued Army service. The applicable regulations direct that an RE code of 4 be issued for a separation code of “JPD,” which indicates separation under chapter 9 of Army Regulation 635-200.

19.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

20.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  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 and RE Code and he has not provided sufficient evidence to show otherwise.

2.  The fact that the VA, in its discretion, may have awarded the applicant a  disability rating for PTSD is a prerogative exercised within the policies of that agency.  It does not, in itself, establish that the applicant was not properly diagnosed or that he was improperly discharged for alcohol rehabilitation failure instead of being medically retired or discharged for PTSD. 

3.  While the applicant’s contentions and supporting documents have been noted, they are not sufficiently mitigating to overcome the evidence of record which clearly show that the applicant repeatedly committed acts of misconduct that were alcohol related and that he resisted attempts at rehabilitation.

4.  Accordingly, in the absence of evidence to show any error or injustice, there appears to be no basis to grant the applicant’s request.  

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)                                         AR20120005822





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ABCMR Record of Proceedings (cont)                                         AR20120005822



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