RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03225

					COUNSEL:
	
						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His Reentry (RE) code and Discharge code be changed for reinstatement to active duty.

He be returned to active duty with back pay and benefits.  

APPLICANT CONTENDS THAT: 

His discharge from active duty for “Failure in Alcohol Abuse Treatment” was unjust.  On 19 Dec 13 he received a Letter of Reprimand (LOR) for allegations of his being drunk and disorderly at Denver Airport.  At that time he was evaluated in the alcohol and drug abuse prevention and treatment (ADAPT) program.  After being diagnosed with alcohol disorder, he completed an intensive outpatient treatment program from 16 Dec 13 to 17 Mar 14.  While in the aftercare ADAPT program he was hospitalized on 31 Aug 14 and was then referred for inpatient treatment at Parkview Medical Center on 4 Sept 14. 

After successfully completing the Parkview inpatient program on 2 Oct 14, he returned to his unit and was again reviewed in the ADAPT program.  Despite having successfully completed the inpatient program, it was determined that he displayed a poor prognosis and resistance to recommended treatments.  Subsequently, it was concluded that he had failed to successfully complete the overall ADAPT program and was recommended for discharge. 

In order to potentially avoid receiving an “other than honorable discharge,” he was advised by his counsel to submit a conditional waiver and forgo a personal appearance before a board of officers.  Additionally, he feels that he was not made aware that the reenlistment code would prohibit him from reentry into the service at a later date.  Therefore, he was essentially denied due process and believes that his discharge was an inappropriate violation of regulations and as such, he should be returned to active duty with full pay and entitlements.   

The applicant’s complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 
11 Dec 07.

On 19 Dec 13, the applicant received a LOR for failure to maintain good order and discipline on three separate occasions during the month of Nov 13.  One of those incidents was for violation of Article 134, when he was cited for drunken and disorderly behavior at Denver International Airport and detained by airport security.  

Dated 5 Sep 14 to 2 Oct 14, the applicant received a certificate of completion from the Parkview Chemical Dependency Unit’s Inpatient treatment program.  

On 15 Oct 14, a letter signed by the ADAPT Program Manager indicates that that due to a poor prognosis after being discharged from Parkview Medical Center on 2 Oct 14 and his resistance to recommended treatments post discharge, he ultimately failed the ADAPT Program IAW Air Force Instruction 44-121.  As such individuals who have been determined as failing the ADAPT program shall be considered for administrative separation by their commander IAW AFI 36-3207, or AFI 36-3208.

According to AFI 44-221, Para 3.18.2. Program Failure, states “The TT (Treatment Team) determines a patient to have failed the program based on a demonstrated pattern of unacceptable behavior, unwillingness to engage with the ADAPT Program after having an ARM (Alcohol-Related Misconduct), inability or unwillingness to comply with their treatment plan, or involvement in ARMs after receiving initial treatment.  The determination that a patient has failed treatment is based on the patient’s repeated failure to meet and maintain AF standards (behavior), rather than solely on the use of alcohol.  Individuals who have been determined as failing the ADAPT Program shall be considered for administrative separation by their CC.” 

On 30 Oct 14, the applicant’s commander notified him he was recommending his discharge from the Air Force under the provisions of AFPD 36-32, Military Retirements and Separations, and AFI 
36-3208, Administrative Separation of Airmen.  The specific reason for this action was on 15 Oct 14, he failed the ADAPT Program as a result of a poor prognosis and resistance to recommended treatments.  

On 31 Oct 14, a signed memorandum from the applicant and his Area Defense Counsel state that he does not waive his right to have a hearing before an administrative discharge board and would be submitting statements on his own behalf.

On 4 Dec 14, the applicant submitted a statement, stating that he understood why he is being recommended for discharge and indicated that he submits a conditional waiver of board hearing and requests that the separation authority accept his commander’s recommendation to characterize his service as honorable.  

In accordance with AFI 36-3208 Para 6.24, “The Conditional Waiver is a statement made by a member who gives up the rights associated with the administrative discharge board proceedings.  The waiver is contingent on the receipt of a type of separation more favorable than the least favorable authorized for any basis for separation set forth in the letter of notification.”  

On 5 Dec 14, the commander recommended approval of the conditional waiver of an administrative discharge board hearing and on 
8 Dec 14, the Wing Commander (the final discharge authority) approved the conditional waiver and directed an Honorable service characterization without the opportunity for Probation and Rehabilitation.  

On 12 Dec 14, the applicant was furnished an honorable discharge and received, “Alcohol Rehabilitation Failure” as his narrative reason for separation.  He was given RE code 2C (Involuntarily separated with an honorable discharge) and was credited with 7 years, 0 months, and 2 days of active service.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C, D and E.    

AIR FORCE EVALUATION:

AFPC/DPSOA defers recommendation for reinstatement to the appropriate Office of Responsibility as the RE code was not a factor leading to his separation.  However, if the applicant is reinstated to active duty, DPSOA will update his RE code, which will be determined at the time of reinstatement.  If the Board denies reinstatement, but the Board determines the RE code 2C is not appropriate, then it is recommended that the Board direct the applicant’s RE code be changed to 3K--(Reserved for use by HQ AFMPC or the AFBCMR when no other RE code applies or is appropriate).

A complete copy of the AFPC/DPSOA evaluation is at Exhibit C.

AFPC/DP2STM-SEP recommends denial, stating that the discharge, to include the applicant’s Separation Program Designator (SPD) code, narrative reason for separation, and character of service was procedurally correct and within the discretion of the discharge authority.  Per AFI 36-3208, paragraph 5.32, Airmen are subject to discharge under this provision if they are in a program of treatment for alcohol abuse and fail to successfully complete the program due to: inability, refusal to participate in the program, or unwillingness to cooperate.  Such airmen should be separated if they either lack the potential for continued military service or need long-term treatment and are transferred to a civilian medical facility for treatment. 

Based on the presumption of regularity and the fact that the applicant did not provide any evidence of an error or injustice, the SPD code and narrative reason for separation are correct as indicated on the DD Form 214.  In this regard, the applicant’s commander determined that his inability to comply with the ADAPT treatment program demonstrated that he lacked the potential for continued military service.  Should the board elect to grant the applicant’s request the record should be corrected to show that his SPD code is changed to reflect “JFF” and the corresponding narrative reason for separation is changed to reflect “Secretarial Authority.”

A complete copy of the AFPC/DP2STM-SEP evaluation is at Exhibit D.

AFPC/JA recommends denial as the applicant did not provide evidence that his records contain an error or injustice.  While the applicant disagrees he failed ADAPT, the Mental Health Flight Commander reviewed the records from Parkview along with all the pertinent ADAPT records and concluded that he had a poor prognosis and resistance to continuing with treatment.  The applicant’s commander was justified in relying on the opinion of the Mental Health Flight Commander to determine the applicant had failed ADAPT.  As such, the commander had discretion to determine whether the applicant lacked the potential for continued service based on his assessment of the applicant’s performance, off-duty behavior, and attitude.  Specifically, the commander laid out his rationale for discharge at paragraph 3 of his recommendation in favor of the applicant’s conditional waiver of his discharge board.  The record supports a legally sufficient basis to find that the applicant failed ADAPT based on an unwillingness to complete the treatment plan and thus the discharge was legally sufficient.  After consulting with counsel, the applicant submitted a conditional waiver, agreeing to waive his board hearing in exchange for an Honorable service characterization.  

A complete copy of the AFPC/JA evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In response, the applicant’s counsel points out that there are errors in the Air Force evaluation that conflicts with AFI 44-121 and reiterates that just as with the administrative separation record, the evaluation fails to show any evidence of the applicant’s unwillingness to change his behavior or evidence that he had in fact not changed his behavior.  In this regard, the evaluation does not address the total absence of documentation in the record, which could be considered a basis for this failure in the program.  Instead, it appears to be no more than an effort to support the commander without having scrutinized the record to determine whether the action was justified beyond the commander's simple desire that a separation occur. 

Furthermore, the failure of counsel to provide the applicant information regarding reenlistment codes was essentially a denial of due process.  Having known the significance of his conditional waiver he could, with proper information, made the waiver contingent on both an Honorable discharge and his being able to reenlist if he so desired.

Again, the applicant submits that he did qualify for retention after completing the inpatient medical treatment based on his alcohol disorder.  However, he gave no indication to anyone that he was unwilling to change his behavior and even if he had done so, the instruction clearly says that a return to alcohol use does not in and of itself constitute program failure.  Considering the facts in the case, he should not have been forced into a situation where he faced involuntary separation with the potential general discharge.  Additionally, he should have been made aware that the conditional waiver could prohibit him from reentry into the service at a later date.  As such, the Board should exercise their ability to correct errors and injustices and change RE code and enlistment status to allow reentry into the Air Force, as well as, return him to duty. 

In support of the response, a sworn statement from the applicant indicates that he did not return to drinking alcohol in Oct 14 and he was not given due process of law, when his Area Defense Counsel did not properly advise him on the effects of submitting the conditional waiver and accepting an Honorable Discharge. 
  
The applicant’s complete response, with attachment, is at Exhibit G.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant's complete submission, to include his rebuttal response, in judging the merits of the case; however, we agree with the opinions and recommendations of AFPC/DP2STM-SEP and AFPC/JA and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While the applicant’s counsel states, that there is a lack of documentation to support the applicant’s ADAPT program failure, we concur with AFPC/JA and believe that the commander was justified in relying on the opinion of the Mental Health professionals to determine his inability to comply with the ADAPT treatment program.  In this regard and in accordance with AFI 36-3208, Administrative Separation of Airmen, the commander had discretion to determine whether the applicant lacked the potential for continued military service.  Therefore, the RE and discharge code assigned at the time of his separation accurately reflects the circumstances of his separation.  In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought.

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2015-03225 in Executive Session on 01 November 2016 under the provisions of AFI 36-2603:

	MX. XXXXXXXXXXX, Panel Chair
	MX. XXXXXXXXXXXXX, Member
	MX. XXXXXXXXXXXX, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03225 was considered:

	Exhibit A.  DD Form 149, dated 13 Jul 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOA, dated 14 Jan 16.
Exhibit D.  Memorandum, AFPC/DP2STM-SEP, dated 25 Jan 16.
Exhibit E.  Memorandum, AFPC/JA, dated 8 Feb 16.
	Exhibit F.  Letter, SAF/MRBR, dated 26 Feb 16.
	Exhibit G.  Letter, Applicant’s Counsel, dated 3 Apr 16, w/atch.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter concerning AFBCMR Docket Number BC-2015-03225.