BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150003030 


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 the narrative reason for his separation from "Alcohol Rehabilitation Failure" to a generic medical or similar reason. 

2.  The applicant states:

* he wants to remove the stigmatized reference to alcohol rehabilitation failure because it is causing him hardship
* he admits he had significant issues with substance abuse while on active duty
* he suffered a traumatic brain injury (TBI) when he fell off a Bradley fighting vehicle in the unit motor pool
* he received inpatient medical treatment for the TBI 
* he self-medicated after the TBI injury 
* his Army chain of command did not give him adequate time to rehabilitate before separating him
* post-service he continues to receive substance abuse treatment
* the current reason for separation affects his permanent employability 
* after losing a job in 2001 due to substance abuse problems, he began to experience a stigma 
* he has since corrected his behavior and substance abuse challenges but the stigma remains 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* reissued/upgraded DD Form 214
* multiple certificates of completion 
* Department of Veterans Affairs (VA) progress notes 

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.  Having had prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 17 June 1993 and held military occupational specialty 45T (Bradley Fighting Vehicle Turret Mechanic).  

3.  He served in Korea from 18 September 1993 to 19 September 1994.  

4.  On 13 January 1995, he was referred to and on 17 January 1995, he was enrolled in the Army Drug and Alcohol Prevention and Control Program (ADAPCP) as a command-referral after having tested positive for marijuana.  

5.  On 19 January 1995, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 

6.  On 28 February 1995, he accepted NJP for wrongfully using marijuana.  

7.  On 28 March 1995, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation (AR) 635-200 (Enlisted Personnel Separations) for ADAPCP failure.  He recommended a general discharge. 

8.  The applicant acknowledged receipt of the commander's intent to separate him and the basis for the contemplated separation for ADAPCP failure, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures/rights available to him. He was advised that he could encounter substantial prejudice in civilian life.  The applicant submitted a statement wherein he appealed his separation action.  He stated: 

* he received an Article 15 for a drug offense despite his belief that he was innocent of the charge
* he appealed his innocence to his commander and first sergeant and submitted a sworn statement that he was not part of the drug party involved
* he asked his chain of command to give him a chance to prove himself and that he could be an asset and he believed that justice would prevail
* he would like the opportunity to redeem himself and show his worth and sense of responsibility

9.  Subsequent to this acknowledgement/statement, his commander initiated separation action against him citing his alcohol/drug abuse rehabilitation failure.  The commander stated:

* on the morning of 11 January 1995, the applicant's supervisor requested a referral after the applicant stated he had a drinking problem and that he had not been eating or drinking, and was taking medications
* later that day, the applicant collapsed and was taken to the hospital; he was placed under observation for dehydration following ingestion of alcohol 
* he was evaluated and entered the ADAPCP outpatient treatment program on 17 January 1995
* he was issued a written list of his appointments and the classes he was required to attend and a consult for his substance abuse issue
* he failed to go to the mandatory appointment on 27 January 1995 and his consult appointment on 30 January 1995
* he then received a positive urinalysis on 10 February 1995 for a urinalysis taken on 23 January 1995
* he was declared a rehabilitation failure and his separation was warranted 

10.  On 3 April 1995, the Clinical Director of Fort Sill, OK, ADAPCP submitted a synopsis of the applicant's ADAPCP rehabilitation activities.  He stated the applicant was enrolled on 17 January 1995 into the outpatient treatment program.  He completed 14 hours of awareness education.  On 15 February 1995, his unit was notified that he tested positive for cannabis while in the treatment program.  He maintained the belief that he did not need rehabilitation and he was a no show for a scheduled therapy appointment.  

11.  The separation authority approved the applicant's discharge under the provisions of chapter 9 of AR 635-200 and directed the applicant be discharged from the Army for alcohol or other drug abuse rehabilitation failure and furnished a General Discharge Certificate.  The applicant was accordingly discharged on 10 April 1995.

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 10 April 1995 under the provisions of chapter 9 of Army Regulation 635-200 by reason of "alcohol rehabilitation failure" with a characterization of service of general, under honorable conditions.  He completed 1 year, 9 months, and 24 days day of creditable service.  This form shows:

* Item 25 (Separation Authority) - AR 635-200, Chapter 9
* Item 26 (Separation Code) - "JPD"
* Item 28 (Narrative Reason for Separation) - "Alcohol Rehabilitation Failure"

13.  On 21 September 2001, the Army Discharge Review Board (ADRB) voted to upgrade his character of service to a fully honorable discharge due to the limited use information (introducing a positive urinalysis during enrollment) which mandated award of a fully honorable characterization of service.  However, the ADRB determined the reason for the discharge was supported by the evidence and it was proper and equitable.  Accordingly, it voted not to change it.

14.  The applicant's DD Form 214 was voided and he was reissued a new DD Form 214 reflecting an honorable characterization of service.  This reissued form shows in:

* Item 25 - AR 635-200, Chapter 9
* Item 26 - JPD
* Item 28 - "Alcohol Rehabilitation Failure"

15.  His service medical records are not available for review.  The available military records are void of documentation indicating he incurred a TBI during his active duty service.  

16.  The applicant provides multiple certificates of completion showing completion of various substance abuse treatment programs between 2003 and 2008. 

17.  He also provides his VA progress notes for the period from November 2002 through February 2009 showing he received treatment.  In May 2003, during a clinical interview, he stated he had sustained a head injury during his period of active duty service and had orthopedic problems related to it.  He was diagnosed in 2006 with the following clinical disorders:  depression, cannabis dependence, cocaine dependence, and alcohol dependence.  He also received a diagnosis of personality disorder, not otherwise specified.  A review of the progress notes shows he had periods of inpatient treatment for his substance abuse followed by outpatient therapy treatment.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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 unless the Soldier is in an entry-level status and an uncharacterized service is required.  
   
   b.  The regulation provides that a Soldier is entitled to an honorable characterization of service if limited-use evidence is initially introduced by the Government in the discharge proceedings, and the discharge is based upon those proceedings.  

19.  Army Regulation 600-85 (The Army Substance Abuse Program) defines the Limited Use Policy.  The objectives of the Limited Use Policy are to facilitate the identification of Soldiers who abuse alcohol and other drugs by encouraging identification through self-referral to facilitate the rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention.  When applied properly, the Limited Use Policy does not conflict with the Army’s mission or standards of discipline.  It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action.  Limited use information includes information such as a Soldier's self-referral to a substance abuse program, drug use revealed in the course of emergency medical care, and drug and alcohol test results obtained voluntarily from a Soldier as part of initial entry into a treatment program.  

20.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code JPD is the correct code for Soldiers separating under chapter 9 of Army Regulation 635-200 by reason of alcohol abuse rehabilitation failure.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided no evidence to support his contention that he sustained a TBI and was hospitalized during his period of active duty service.  Notwithstanding the lack of evidence to support a TBI injury, the applicant admitted that he self-medicated after the injury.  

2.  The evidence of record shows he exhibited a substance abuse problem and he was provided with the opportunity to overcome his problem through counseling and referral to and enrollment in the ADAPCP.  However, he showed poor rehabilitation potential when he missed his scheduled mandatory appointments.  He was therefore declared an ADAPCP rehabilitation failure and accordingly his immediate commander initiated separation action against him.  

3.  The ADRB reviewed his discharge and determined that introduction of a positive urinalysis while he was enrolled in the ADAPCP violated the limited use policy, which required correction of his record to show he received an honorable characterization of service.  However, the reason for his separation did not change.  It was supported by the evidence and it was proper and equitable.  Accordingly, the ADRB voted not to change it.

4.  His narrative reason for separation and corresponding separation code were assigned based on the fact that he was discharged for being an alcohol abuse rehabilitation failure.  Absent his rehabilitation failure, there was no fundamental reason for his chain of command to initiate separation action.  The underlying reason for his discharge was his rehabilitation failure.  The only valid narrative reason for separation permitted under that paragraph is "alcohol abuse – rehabilitation failure" and the corresponding SPD code as "JPD."  

5.  While it is understandable that after years of rehabilitation post-service, he now desires to change his narrative reason for separation to a more favorable reason to gain civilian employment and remove the stigma associated with his reason for discharge.  The applicant has provided insufficient evidence to substantiate his claim that his TBI led to self-medication and then rehabilitation failure for substance abuse.  He failed to show his narrative reason for separation was in error or unjust and, as such, there is insufficient evidence to grant him the requested relief. 



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)                                         AR20150003030



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ABCMR Record of Proceedings (cont)                                         AR20150003030



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