BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130014828 


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 (Certificate of Release or Discharge from Active Duty) in item 28 (Narrative Reason for Separation) to show "Medical Discharge" or any other narrative reason that does not specifically mention "Drugs[s] and Alcohol."

2.  The applicant states he has been turned down for several jobs and questioned about drug and alcohol abuse while applying for jobs.  He has been drug and alcohol free for over 20 years.

3.  The applicant provides no additional evidence.

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.  After having had previous enlisted service, the applicant enlisted in the Regular Army on 26 June 1979 and held military occupational specialty 91B (Medical Specialist).  

3.  His record contains three U.S. Army Europe (AE) Forms 113-4 (Record of Informal Counseling) dated:

* 31 August 1979 which shows he was counseled for failing to report to duty on time
* 21 November 1979 which shows he was counseled for failing to report to duty on time; this form also shows his supervisor had previously recommended him for promotion but was revoking the request
* 25 December 1979 which shows he was counseled for failing to report to duty on time

4.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 24 April 1980, which shows he accepted non-judicial punishment (NJP) for being absent from his place of duty on 18 April 1980 and 24 April 1980.

5.  His record contains a memorandum dated 20 May 1980 which stated the applicant had been evaluated by medical authorities and it was medically confirmed that he was improperly using opiates.  He was required to enroll in a rehabilitation program.

6.  His record contains a DA Form 2627 which shows he accepted NJP under the provisions of Article 15 of the UCMJ on 12 June 1980 for operating a privately owned vehicle without a valid driver's license.

7.  His record contains an AE Form 113-7-R (Alcohol and Drug Abuse Prevention and Control (ADAPC) Progress Report) dated 21 July 1980 wherein he was declared to be a rehabilitative failure.  This form further states that the applicant had been referred to a treatment facility for heroin use.  He was medically evacuated to the treatment facility and diagnosed with improper use of opiates.  

   a.  The applicant self-referred to detoxification (detox) on 9 May 1980.  He was on the Detox ward from 9-12 May 1980 and experienced mild withdrawals.  He stated that he had only been using heroin for the past 8 months in order to cope with boredom, loneliness, and homesickness.   The applicant stated that he had attempted to get discharged in accordance with Army Regulation 635-200 (Personnel separation – Enlisted Personnel), chapter 5, but had been unsuccessful.  A counselor asked him if his self-referral to detox was an attempt to receive a chapter 9 (Alcohol and Drug Abuse Policy (Exemption Policy)).  The applicant responded in the negative and stated he would like to leave the Army and to stop using heroin.  He admitted to using heroin twice after his release from detox but denied any use in the last 30 days.  He also admitted he would pursue a chapter 5 or chapter 13 discharge, but stated he would not get in any trouble because he did not want a bad discharge.

   b.  The applicant's appearance and personal statements indicate that he had not injected heroin recently.  His counselor felt his desire to leave the service and go home was sincere, and that if his desires were not met he would most likely continue using heroin.  The applicant fully understood that he was responsible for his own actions and finding other ways to cope with his problems. His commander reported that the applicant does "below par" work and had recently received a positive urinalysis for Percodan and barbiturates.

   c.  The counselor stated that the staff at the detox facility did not see the applicant being amenable to treatment.  The counselor felt that the applicant should be declared a rehabilitative failure because the applicant has admitted to using heroin during the ADAPC program, received a positive urinalysis for Percodan, and has a strong desire to go to great lengths to leave the Army.  

8.  His record contains an AE Form 13-8-R (Notification for Discharge for Alcohol or Other Drug Abuse (Exemption Policy) and Acknowledgement) dated 5 August 1980 wherein the applicant's commander notified him of his intent to separate him from military service under the provisions of Army Regulation 635-200, chapter 9.  His commander stated that the applicant was resisting all efforts by his chain of command to help him improve by continuing to use drugs.  The commander further stated that the applicant had been counseled to no avail and had received NJP under the provisions of Article 15 of the UCMJ on two separate occasions.  The applicant acknowledged receipt of this form/notification.

9.  On 5 August 1980, his commander officially recommended the applicant's separation in accordance with paragraph 9-2 of Army Regulation 635-200 and stated the applicant was determined to be a rehabilitation failure as evidenced by the statement of his ADAPC counselor.  He had enrolled in the ADAPC rehabilitation program on 9 May 1980 and was detoxified during the period of 
9-12 May 1980.  However, he admitted to using heroin during the program, received a positive urinalysis while enrolled in the program, he had strong desire to leave the Army, and was not amenable to treatment.  The commander stated that the applicant was notified of his intent to recommend he be discharged and the reasons thereof.  He was also notified of his right to consult with legal counsel.

10.  His record contains a DA Form 2496 (Disposition Form) dated 8 August 1980 for a medical examination for separation or retirement.  However, the applicant signed a statement on 11 August 1980 indicating that he did not desire a separation medical examination.

11.  His record does not contain the remainder of his separation packet; however, it does contain a duly-constituted DD Form 214.  His DD Form 214 shows he was honorably discharged on 18 August 1980 in accordance with chapter 9 of Army Regulation 635-200 by reason of alcohol or other drug abuse (exemption policy).

12.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his narrative reason for separation within that board's 15-year statute of limitations.

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 Soldiers 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.  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. 

14.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  Chapter 2 contains guidance on the preparation of the DD Form 214:  

   a.  Paragraph 2-7a states that an entry is required in all items on the DD Form 214.  

   b.  Table 2-1 states that item 25 documents the regulatory or statutory authority cited in directives authorizing the separation.

DISCUSSION AND CONCLUSIONS:

The applicant was discharged under the provisions of chapter 9 of Army Regulation 635-200, by reason of alcohol or other drug abuse (exemption policy). Absent such failure, there would have been no reason to discharge him.  As such, there is no other, more appropriate provision to cite as the authority for separation.  Army Regulation 635-5 requires that item 25 contain an entry and the current entry is correct; therefore, there is an insufficient basis to grant relief in this case.  

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)                                         AR20130014828





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ABCMR Record of Proceedings (cont)                                         AR20130014828



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