IN THE CASE OF:  	  

		BOARD DATE:  21 July 2015	  

		DOCKET NUMBER:  AR20150005979 


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 records to show he was medically discharged instead of being discharged for alcohol abuse rehabilitation failure. 

2.  The applicant states he is diagnosed with paranoid schizophrenia which he had while on active duty.  He would like to obtain a medical discharge under honorable conditions.  He believes his psychiatric problems impaired his ability to serve.  He had a lot of problems growing up and he did not know he had a mental health problem and that he was self-medicating.  He tried to serve and loved the Army but he was sick.  He did not know until 1999 that he had been living with a psychotic disorder.  He wants to get what he deserves so he can qualify for treatment and medications. 

3.  The applicant provides:

* Post-service civilian/prison medical records (2014/2015)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment/Reenlistment Document) 
* DA Form 2-1 (Personnel Qualification Record)
* Bar to Reenlistment
* Reduction in grade orders
* Multiple DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* Separation packet
* DA Form 268 (Report for Suspension of Favorable Personnel Actions) 

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's records show he enlisted in the Regular Army on 16 April 1978 and held military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  

3.  He served in Korea from August 1985 to September 1986.  He was advanced to private first class/E-3 on 16 April 1986.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle and 81 mm Mortar Bars, and the Expert Marksmanship Qualification Badge with Grenade Bar. 

4.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on/for: 

* 24 May 1986, being drunk and disorderly; his punishment consisted of a reduction to E-2 (suspended), forfeiture of pay (suspended), restriction and extra duty
* 17 June 1986, wrongfully appropriating a military vehicle and wrongfully operating a military vehicle while drunk; his punishment consisted of a reduction to E-1, forfeiture of pay, and restriction and extra duty 
* 2 July 1986, the suspension of punishment of reduction to E-2 and forfeiture of pay imposed on 24 May 1986 was ordered vacated and the unexecuted portion ordered executed  

5.  On 27 June 1986, the Alcohol and Drug Control Officer (Clinical Director) of the 2nd Infantry Division Command in Korea issued a Summary of Treatment and/or Statement of Rehabilitation Failure.  He stated the applicant entered the drug and alcohol rehabilitation program on 5 May 1986 as a result of driving under the influence.  His alcohol problem had existed for 6 months.  He was scheduled for nine appointments of which one was an individual session and eight were group sessions.  He was a no-show on seven different occasions, five of which were unexcused.  As part of his rehabilitation plan, he was required to abstain from using alcohol and drugs.  He continued to abuse alcohol and therefore violated his treatment plan.  The Clinical Director recommended declaring him an alcohol abuse rehabilitation failure and that his commander take appropriate action under the provisions of chapter 9 of Army Regulation 635-200 (Enlisted Personnel Separations).  

6.  On 17 July 1986, the applicant underwent a separation physical.  He was found medically qualified for separation.  The medical officer assigned him a physical profile of "1-1-1-1-1-1-1." 

7.  On 21 July 1986, the applicant underwent a mental status evaluation.   The Chief of Inpatient Psychiatry stated the applicant had the mental capacity to understand and participate in these proceedings.  He met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  He did not suffer from a major psychiatric disorder.  However, he did display the features of behavior and thought that were compatible with an immature personality disorder which among other maladaptive characteristics is associated with excessive alcohol abuse.  The Chief of Inpatient Psychiatry recommended expeditious administrative separation. 

8.  On 23 July 1986, he again underwent a mental status evaluation.  He was found mentally responsible and he had the mental capacity to understand and participate in these proceedings.  He met the retention standards.

9.  On 28 July 1986, his immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his alcohol-related incidents, including assaulting a noncommissioned officer while drunk, appropriating a military vehicle while under the influence, and failing to respond to counseling and rehabilitation efforts despite being enrolled in Track I of the drug and alcohol program.  The applicant was provided a copy of this bar and he elected not to submit a statement on his own behalf.  The approving authority approved the bar. 

10.  On 29 August 1986, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation 635-200 for rehabilitative failure of the Army Drug and Alcohol Prevention Control Program (ADAPCP) due to alcohol abuse.  The basis for this action was his continued abuse of alcohol despite rehabilitative efforts.  Additionally, the commander stated that it was determined further rehabilitative efforts were not practical and rendered the applicant a rehabilitative failure. 

11.  On 4 September 1986, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for rehabilitative failure of the ADAPCP for alcohol abuse, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He indicated:

* he understood he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood that he could make an application to the Army Discharge Review Board or the ABCMR for an upgrade; however, an act of consideration does not imply that his discharge would be upgraded
* he waived consideration of his case by an administrative separation board and personal appearance before such board
* he further elected not to submit a statement on his own behalf 

12.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with chapter 9 of Army Regulation 635-200 by reason of rehabilitative failure due to alcohol abuse.

13.  On 8 September 1986, the separation authority approved the applicant's discharge under the provisions of chapter 9 of Army Regulation 635-200 and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 18 September 1986.  

13.  His DD Form 214 shows he was discharged on 18 September 1986 under the provisions of chapter 9 of Army Regulation 635-200 by reason of "alcohol abuse – rehabilitation failure" with a characterization of service of general under honorable conditions.  This form further shows he completed 1 year, 5 months, and 3 days of creditable active military service.

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

15.  He provides some of his post-service civilian medical records from the Mental Health Satellite Unit at Midstate Correctional Facility, Marcy, NY.  The records show a diagnosis of psychotic disorder, bipolar disorder, cocaine use disorder, and alcohol use disorder.  These record show he had a long history of bipolar disorder and that he had stopped mental health treatment and was abusing alcohol and cocaine.  

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 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.  

17.  Paragraph 3-7a of Army Regulation 635-200 states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Army Regulation 40-501 does not list alcoholism or alcohol abuse as a condition that requires referral to a medical evaluation board (MEB)).

19.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation should be changed from alcohol abuse-rehabilitation failure to a medical discharge.

2.  The evidence of record shows the applicant suffered from alcohol abuse.  He was provided multiple opportunities to overcome his abuse including counseling and referral to and enrollment in an alcohol prevention and control program following his alcohol-related incidents.  However, he showed poor rehabilitation potential.  He was therefore declared an alcohol abuse-rehabilitation failure and accordingly his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not appear to be an error or an injustice in the processing of his discharge.

3.  The applicant was discharged under the provisions of chapter 9 of Army Regulation 635-200 due to alcohol abuse-rehabilitation failure.  Absent his continued alcohol abuse, there was no reason to refer him to Track II of the alcohol prevention and control program.  Additionally, absent his rehabilitation failure, there was no other fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his alcohol abuse rehabilitation failure.  The only valid narrative reason for separation permitted under this paragraph is "Alcohol Abuse - Rehabilitation Failure."

4.  There is no evidence in the available records and the applicant failed to submit any evidence that shows at the time of his discharge from the Army he suffered from a physical or a mental health condition that limited his ability to perform in his grade and MOS or that would have warranted entry into the PDES. Alcohol abuse is not a condition that required referral to an MEB. 

5.  Likewise, nothing in his available service records show he was diagnosed with paranoid schizophrenia which he contends he had while on active duty.  In other words, his service was not interrupted by any medical condition that would have warranted disposition through medical channels.  His service was clearly interrupted by his rehabilitation failure.  As such, he does not meet the criteria for a medical discharge.

6.  Additionally, based on his record of indiscipline and alcohol rehabilitation failure, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his service does not warrant an honorable 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)                                         AR20150005979



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ABCMR Record of Proceedings (cont)                                         AR20150005979



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