BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20130000743 


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 the narrative reason for his separation be changed from alcohol rehabilitation failure to permanent physical disability.

2.  The applicant states the Department of Veterans Affairs (VA) has recently awarded a 70% disability rating for several medical conditions, principally related to his back, that all had their onset while on active duty.  While in the Army, he saw therapists, doctors and was a patient in the Army Drug and Alcohol Abuse Prevention and Control Program (ADAPCP).  He believes his discharge should have been a disability discharge due to the underlying physical and mental injuries he suffered and continues to suffer as a result of his period of active duty.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a VA award letter, and a VA disability rating decision.

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 23 June 1997, completed training, and was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).

3.  Except for his separation medical examination and a mental health evaluation, the applicant's service medical records are believed to be on permanent loan to the VA and are not therefore available for review.

4.  A separation medical examination was afforded to the applicant on 
29 October 1998.  The applicant reported no problems or complaints related to a back problem.  No other abnormal physical conditions were reported or found except for a complaint of depression and excessive worry.  The applicant was found to be qualified for separation.

5.  On 2 November 1998, the Clinical Director, ADAPCP declared the applicant a rehabilitation failure.  

6.  A 4 November 1998 Mental Health Evaluation found no mental health problems requiring processing through medical channels.

7.  On 23 November 1998, the applicant's unit commander initiated separation action under the provisions of chapter 9, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of alcohol rehabilitation failure.  He recommended the applicant receive an honorable discharge.  

8.  The applicant was advised of his rights and was advised of the impact of the discharge action.  After consulting with legal counsel, he waived his right to submit a statement in his own behalf.  

9.  On 18 December 1998, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with an honorable characterization of service as an alcohol rehabilitation failure.

10.  The applicant was honorably discharged on 20 January 1999 with a narrative reason for separation of alcohol rehabilitation failure.  He had 1 year, 6 months, and 29 days of creditable service.

11.  On 11 June 2008, the Army Discharge Review Board denied the applicant's request for a change of his narrative reason for separation.
12.  A 7 August 2012 VA rating decision awarded the applicant a 70% disability rating for:  

* L5-S1 retrolisthesis (posterior displacement of one vertebral body with respect to the adjacent vertebrae), 10 percent
* bilateral radiculopathy of the lower extremities (a condition in which one or more nerves are affected and do not work properly), considered secondary to retrolisthesis, 30 percent on left and 10 percent on right
* recurrent depressive disorder with alcohol abuse, considered secondary to retrolisthesis, 30 percent

13.  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 or other drug abuse.  A member who has been referred to 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.  

14.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

15.  Title 38, U.S. Code, sections 310 and 331, permit 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 physically 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The applicant has not provided and the record does not show that at the time of separation he was suffering from any medical, physical, or mental condition warranting medical disability processing.

3.  The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in a military disability evaluation.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  Therefore, there is insufficient evidence to demonstrate an error or injustice in the applicant's 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 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)                                         AR20130000743





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ABCMR Record of Proceedings (cont)                                         AR20130000743



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