IN THE CASE OF:	  

		BOARD DATE:  19 November 2013

		DOCKET NUMBER:  AR20130003028 


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 (Report of Separation from Active Duty) to show he was discharged for disability. 

2.  The applicant states he has had a service-connected disability since he left the military.  He needs compensation from the Department of Veterans Affairs (VA) for the current and lifelong damage he incurred from the military service.  In 1978, he suffered a mental breakdown; he had depression and dissociative disorder.  He states he was separated from the military six months prior to his expiration of term of service (ETS) for having a mental breakdown.  Since his discharge he has had some major bouts with depression and suicide attempts.  He has lost jobs because of his condition and has been in and out of several mental hospitals.  

3.  The applicant provides:

* his DD Form 214 
* a Superior Court of California, County of Fresno, Decree Changing Name,
dated 3 June 1991
* a VA Form 21-526 (Veteran's Application for Compensation and/or Pension) Packet, dated 14 January 2013
* a VA Form 21-4138 (Statement in Support of Claim), dated 14 January
2013


* five VA Forms 21-4142 (Authorization and Consent to Release Information to the VA), dated 14 January 2013
* four-page email addressed to the President of the United States, dated
5 February 2013 

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 30 August 1976.  He successfully completed training and was awarded military occupational specialty 76D (Materiel Supplyman).

3.  On 12 January 1979, the applicant was mandatorily enrolled in the Alcohol and Drug Abuse Prevention Control Program (ADAPCP) for counseling and rehabilitation for abuse of alcohol, lysergic acid diethylamide (LSD), amphetamines, heroin, hashish and mandrex.

4.  An Army Europe (AE) Form 113-7-R, dated 23 January 1979, shows an ADAPCP official advised the applicant's company commander, that the applicant was a rehabilitation failure.  The official stated, "SP4 S_____ was entered into the CDAAC program as the result of a drug overdose.  He admits to multi drug usage and claims mandrex is his drug of choice.  On several occasions SP4 S_____ expressed no anxiety about his drug intake and says hw [sic] will continue to abuse drugs as long as he remains in the Army."  

5.  The document further shows he admitted to slashing his wrist two weeks prior due to pressure in the unit and separation from the service of several of his close friends.  It was his second suicide attempt.  The official also stated counselors strongly believed that further rehabilitative efforts would prove futile.  The applicant did not respond to counseling.  Both his counselor and unit commander felt that he should be declared a rehabilitation failure and be released from the military under the provisions of chapter 9, Army Regulation 635-200 (Enlisted Personnel Separations).

6.  On 23 January 1979, the applicant was notified by his company commander that he was initiating action to separate the applicant under the provisions of Army Regulation 635-200, chapter 9, for alcohol or other drug abuse rehabilitation failure.  The reason cited by the commander was the applicant's rehabilitative failure in the ADAPCP.

7.  On 23 January 1979, the applicant acknowledged that he was advised of the basis for his separation under the provisions of Army Regulation 635-200.  The applicant waived his right to seek counsel and indicated that he would not provide statements on his own behalf.

8.  On 1 February 1979, the applicant underwent a psychiatric evaluation.  The military psychiatrist determined the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the metal capacity to understand and to participate in board proceedings.

9.  On 14 February 1979, the applicant was discharged under the provisions of chapter 9, Army Regulation 635-200, for alcohol/drug abuse rehabilitation failure. The applicant was issued a honorable discharge.  He completed a total of 2 years, 5 months, and 15 days of creditable active service at the time of separation with no lost time.

10.  Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program), chapter 5, in pertinent part, states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander, in consultation with the ADAPCP staff, determines that further rehabilitation efforts are not practical and that rehabilitation is a failure.

11.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel at that time.  Chapter 9 contained the authority and outlined the procedures for discharging Soldiers because of alcohol or other drug abuse.  A member who had 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 were no longer practical.  Initiation of separation proceedings was required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter would be characterized as honorable or general under honorable conditions unless the Soldier was in entry-level status and an uncharacterized description of service was required.  However, an honorable discharge was required if restricted-use information was used.

12.  Army Regulation 635-40 (Physical Evaluation), chapter 3 provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  To be found unfit due to physical disability, individuals must be unable to perform the duties of grade, rank or rating.

13.  Army Regulation 635-40 also states that under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show he was discharged for disability was carefully considered and it was determined there is insufficient evidence to support his request.  The available evidence shows that the applicant was administratively separated for alcohol/drug abuse rehabilitation failure.  

2.  Although the applicant contends that he should be given a medical discharge, there is no medical evidence of record that shows he had any mental or medical condition prior to his discharge on 14 February 1979 that would have rendered him eligible for physical disability processing.  The military psychiatrist found no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and that the applicant had the mental capacity to understand and participate in board proceedings.  

3.  Further, there is insufficient evidence to show that any mental conditions he may have suffered from were not caused by his misconduct in the use of a wide range of illegal drugs.

4.  Therefore, the applicant has not established a basis sufficient to show he should have been discharged for disability.

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)                                         AR20130005734



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ABCMR Record of Proceedings (cont)                                         AR20130003028



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