BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001684 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001684 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001684 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, in effect, upgrade of his general, under honorable conditions discharge based on unfair treatment and also improper separation procedures due to medical conditions sustained while serving on active duty. 2. The applicant states his administrative discharge was based on a Summary Article 15 that he received. He states that he was supposed to be off-duty, but he was called to duty and charged with being drunk on duty. He adds he suffers from leg problems that were not present prior to his enlistment in the U.S. Army. 3. The applicant provides no additional documentary evidence in support of his application. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant's records to show he was honorably discharged based on an unfitting medical condition. 2. Counsel offers no comments. 3. Counsel provides no documentary evidence in support of the applicant's request. 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 25 March 1988 for a period of 4 years. Upon completion of training he was awarded military occupational specialty 77W (Water Treatment Specialist). 3. He was assigned to the 26th Supply and Service Company in Germany on 18 August 1988. At the time he was 18 years of age. a. He was advanced to private (E-2) on 20 September 1988. b. A DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice), dated 10 November 1988, shows the applicant accepted nonjudicial punishment (NJP) for being found drunk on duty at about 0630 hours, 19 October 1988. It also shows he was given a Blood Alcohol Content (BAC) test and the results revealed he had a BAC of 0.80 percent (%) (at 0830 hours, 19 October 1988). His punishment included 7 days of extra duty and 7 days of restriction. He did not appeal the NJP. c. A DA Form 2627-1, dated 13 December 1988, shows he accepted NJP for failing to go at the time prescribed (at 0630 hours, 2 December 1988) to his appointed place of duty. His punishment included 5 days of extra duty. He did not appeal the NJP. d. On 13 February 1989, the applicant self-enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). e. On 6 March 1989, two Soldiers reported that the applicant (along with two other Soldiers) had been drinking beer on 2 March and 5 March 1989. f. On 16 March 1989, the Acting Commander, 16th Support Group, requested the Provost Marshal conduct a BAC test on the applicant. The BAC test results revealed he had a BAC of 0.42% (at 0845 hours, 16 March 1989). g. A DA Form 4856 (General Counseling Form), dated 16 March 1989, shows the applicant was counseled for being drunk during duty hours, on 16 March 1989, and while enrolled in the ADAPCP. h. A DA Form 4856, dated 13 April, shows he was counseled for missing formation (at 0630 hours, 13 April 1989). 4. On 12 April 1989, the Clinical Director, ADAPCP, Hanau Military Community, provided a synopsis of the applicant's ADAPCP rehabilitation activities to the commander. The director confirmed the applicant was enrolled in the ADAPCP (Track II) on 13 February 1989 as a result of self-referral for alcohol and that he had completed the 3-week assessment group portion of the program. He noted the applicant was declared a rehabilitative failure for failure to meet rehabilitation goals based on his return to and continued consumption of alcohol during the program. The director indicated that the applicant's potential for successful rehabilitation was very poor. 5. A DA Form 3822-R (Report of Mental Status Evaluation), dated 25 April 1989, shows the applicant was evaluated by a psychologist. The applicant was found to be fully alert and oriented, his thinking process was clear, behavior and thought content normal, memory good, and mood or affect unremarkable. The psychologist opined that the applicant had the mental capacity to understand and participate in the separation proceedings. 6. A Standard Form (SF) 93 (Report of Medical History), prepared by the applicant on 25 April 1989, shows in item 8 (Statement of Examinee's Present Health and Medications Currently Used), he entered, "I am in good health." Item 11 (Have You Ever Had or Have You Now) shows he indicated "Yes" in response to the following: frequent or severe headache, eye trouble, ear/nose/throat trouble, heart trouble (murmur), cramps in legs, recurrent back pain, "trick" or locked knee, and wears glasses/contacts. The applicant did not elaborate on any of the conditions. 7. An SF 88 (Report of Medical Examination), prepared by the examining physician to document the applicant's separation examination on 25 April 1989, in pertinent part, shows in – * item 73 (Notes): "None" * item 74 (Summary of Defects and Diagnoses): "None" * item 77 (Examinee), the applicant was found qualified for separation 8. On 10 May 1989, Trial Counsel, Hanau Legal Center, provided a legal review of the proposed administrative separation action and found it legally sufficient to separate the applicant. It also shows, "However, since there is evidence of a positive rehabilitative urinalysis (THC) included in the allied documents, the Army's 'Limited Use' policy requires that [applicant] be separated with an honorable discharge (Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraphs 2-6h and 3-8h). Accordingly, paragraph 23 of the notification letter should be changed to reflect "Honorable" and the Commander, 26th Supply and Service, should recommend an honorable discharge." 9. On 22 May 1989, the applicant's company commander notified him that he was initiating action to discharge him under the provisions of AR 635-200, chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), paragraph 9, based on his inability to successfully complete the alcohol rehabilitation program. a. The reasons for his proposed action were the applicant had received NJP on two occasions and he was counseled on one occasion pertaining to incidents relating to his improper use of alcohol. b. The applicant was advised of his rights and the separation procedures involved. c. The notification letter also shows in: * paragraph 14 – "Recommend Soldier receive a(n) General Discharge." * paragraph 23 – "The least favorable type of discharge that you may receive is a General Discharge." 10. Following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him. a. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions characterization of service was issued to him. b. The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his discharge. However, an act of consideration by either board did not imply that his discharge would be upgraded. c. He indicated that he would not submit any statements in his own behalf. d. The applicant and his counsel placed their signatures on the document. 11. The separation authority approved the recommendation for discharge and directed the applicant be furnished a General Discharge Certificate. 12. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 25 March 1988 and he was discharged on 29 June 1989 under honorable conditions (general). He had completed 1 year, 3 months, and 5 days of total active duty service. It also shows in – * item 25 (Separation Authority): AR 635-200, Chapter 9 * item 26 (Separation Code): "JPD" (Alcohol Rehabilitation Failure) * item 28 (Narrative Reason for Separation): Alcohol Abuse – Rehabilitation Failure 13. A review of the applicant's administrative separation packet and his available military service records failed to reveal a record of a positive rehabilitative urinalysis (THC) result. 14. On 13 December 1995, the ADRB considered the applicant's request for upgrade of his discharge. The ADRB determined that the reason for his discharge and the character of his service were both proper and equitable. The ADRB denied the relief requested by the applicant. 15. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 3 August 2017. a. The ARBA senior medical advisor's opinion was based on information provided by the ABCMR. He noted that the applicant did not provide medical information (which was requested on 6 April 2017). He also noted the applicant was under 21 years of age during the period of his military service. b. The Department of Veterans Affairs (VA) electronic record was reviewed through the Joint Legacy Viewer with no problems listed. He noted, in pertinent part, the following VA encounters: * right tibia/fibula x-rays on 9 October 1997 – fracture of proximal fibula and comminuted fracture of distal third of the tibia which extends to the joint surface; leg is in cast * right tibia/fibula and ankle x-ray series on 18 February 1998 – there is evidence of old fracture of the distal shaft of the tibia with satisfactory apposition of the fragment; old fracture of the fibular neck was noted * closed fracture of tibia * osteoarthrosis of leg * unspecified psychological circumstance * cervicalgia (neck pain) * hypertension c. Based on the available documentation, the senior medical advisor found: * the available record does no support post-traumatic stress disorder or another boardable behavioral health condition existed at the time of the applicant's service * the applicant's medical conditions were duly considered during his medical separation processing * the applicant met medical retention standards that were applicable to his era of service d. He concluded that a review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 16. On 4 August 2017, both the applicant and his counsel were provided a copy of the ARBA medical advisory opinion to allow them the opportunity (14 days) to submit comments or a rebuttal. A response was not received from either the applicant or his counsel. REFERENCES: 1. AR 600-85 (The Army Substance Abuse Program (ASAP)) provides comprehensive alcohol and drug abuse prevention and control policies, procedures, and responsibilities for Soldiers of all components, Army civilian corps members, and other personnel eligible for ASAP services. Chapter 10 (Legal and Administrative Procedures, and Media Relations) addresses legal and administrative actions and procedures involving drug and alcohol use by Soldiers and civilian corps members. Section III (Legal Actions for Soldiers) shows in: * paragraph 10-11 (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. * paragraph 10-12 (Definition of the Limited Use Policy), unless waived under the circumstances listed in paragraph 10-13d of this regulation, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy is limited to, in pertinent part: * a Soldier's self-referral to the ASAP * admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to the ASAP and provided by Soldiers as part of their initial entry into the ASAP * the results of a drug or alcohol test administered solely as a required part of a DOD or Army rehabilitation or treatment program 2. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9, in effect at the time, provides for a discharge based on alcohol or other drug abuse (such as the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug) when the member is enrolled in an ADAPCP and the commander determines that further rehabilitation efforts are not practical, thereby rendering the member a rehabilitation failure. This determination will be made in consultation with the rehabilitation team. The service of a member discharged under this section will be characterized as honorable or under honorable conditions. DISCUSSION: 1. The applicant and his counsel contend, in effect, that the applicant's general, under honorable conditions discharge should be upgraded and his administrative discharge should be changed to a medical discharge because he was unfairly treated during the separation process and he had an unfitting medical condition that he sustained while serving on active duty. 2. The evidence of record shows the applicant was under the age of 21 during the period of service under review. He was discharged, on 29 June 1989, with a general, under honorable conditions discharge due to his alcohol abuse rehabilitation failure. a. The applicant accepted NJP for being found drunk on duty on 19 October 1988. (1) There is no evidence the applicant offered information in his defense about being in an off-duty status at the time and he did not appeal the NJP. (2) The evidence of record fails to support his contention that he was supposed to be off-duty at the time. b. On 13 February 1989, the applicant self-enrolled in the ADAPCP. c. It was reported that he had been drinking beer on 2 and 5 March 1989. d. On 16 March 1989, a BAC test result revealed he had a BAC of 0.42%. e. On 12 April 1989, the Clinical Director, ADAPCP, Hanau Military Community, confirmed the applicant was declared a rehabilitative failure for failure to meet rehabilitation goals based on his continued consumption of alcohol during the program. He noted the applicant's potential for successful rehabilitation was very poor. f. The applicant was evaluated by a mental health professional prior to his separation for alcohol abuse and rehabilitation failure. It was determined that the applicant met medical retention standards and he was medically cleared for administrative separation. 3. There evidence does not show that the Army's "Limited Use" policy (for use of THC) was applicable to the characterization of his service. 4. The evidence of record shows, in pertinent part, the applicant experienced leg cramps and a "trick" knee during the period of service under review. a. It also shows that subsequent to his discharge (in October 1997), he sustained a fracture of his proximal fibula and a comminuted fracture of distal third of the tibia. b. The evidence of record fails to support the applicant's contention that he should have been processed for medical separation based on an(y) unfitting medical condition(s). 5. The applicant's administrative discharge under the provisions of AR 635-200, chapter 9, based on alcohol abuse rehabilitation failure was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 6. During the period of service under review the applicant: * was counseled for – * being drunk on duty * missing formation * received NJP for – * being drunk while on duty * failing to go at the time prescribed to his appointed place of duty * failed the ADAPCP due to his continued use of alcohol * failed to complete his 4-year active duty service obligation 7. Notwithstanding his alcohol dependence, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel required for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001684 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001684 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2