IN THE CASE OF: BOARD DATE: 27 October 2021 DOCKET NUMBER: AR20210010489 APPLICANT REQUESTS: in effect the following, * entry into the disability evaluation system * a disability evaluation system finding showing he was unfit for continued active service with assignment of disability ratings for his behavioral health and physical health medical conditions * correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: * Block 23 (Type of Separation) – medical separation or retirement * Block 25 (Separation Authority) – Army Regulation 635-40, chapter 4 * Block 26 (Separation Code) – a medical code * Block 28 (Narrative Reason for Separation) – disability separation or similar reason * reinstatement of his rank and pay grade to private first class (PFC)/pay grade E-3 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant letter to the Board dated 29 July 2021 * DA Form 3822 (Report of Mental Status Evaluation) undated * DA 3763 (Community Health Nursing – Case Referral) dated 9 October 1997 * Service treatment records * Civilian treatment records * Department of Veterans Affairs (VA) treatment records * VA Supplemental to Statement of Case, VA Appeals Management Center page 1 only dated 29 January 2008 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he was undergoing behavioral health treatment for substance abuse and he had other physical health diagnoses or problems. At the time of his separation a military psychiatrist stated on DA Form 3822 (Report of Mental Status Evaluation) that he did not have any mental health diagnoses or problems. The fact is he had two periods of in-patient hospitalization ordered by his military doctors. He also had multiple surgeries and was in medical treatment for his lower extremities (back pain, flat feet, ankle pain, and knee pain). He was being treated for his various medical conditions when his commander initiated separation action. He states the Army failed him when it did not take into consideration his mental and physical ailments when it administratively separated him from service. The military psychiatrist said his mind was stable. He still experiences nightmares, has anxiety and depression because of the treatment he received for having a disease. He requests correction to his record to show he entered the disability evaluation system receiving disability ratings for his multiple medical conditions. He states, in effect, he should receive a medical separation or retirement and his DD Form 214 should be corrected to show his medical health was the reason for his separation. Lastly, he requests restoration of his rank to PFC/E-3. He believes because of his behavioral health diagnosis he should not have undergone a reduction in rank [under Article 15, Uniform Code of Military Justice]. 3. On 23 July 2021, the staff of the Army Review Boards Agency sent the applicant a letter asking him to submit medical documents to support his contention he should undergo medical evaluation through the disability evaluation system (DES). 4. On 29 July 2021 he responded submitting the aforementioned documents and a letter. He states in effect, a. He injured his back during basic combat training. He could not perform physical fitness training for more than 1 week. He required arch supports or similar devices in his shoes/boots otherwise he was told his feet would go completely flat. He did not get the specialty boots he needed so during his military service his feet went completely flat. He claims he had a disease and self-referred himself for medical treatment. b. He was in a military court room with his wife and their four children. He was scared, depressed and full of anxiety. He had just about given up! His commanding officer took his pay by reducing him in rank to private/pay grade E-2. c. His other medical conditions included herniated disks, hernia surgery, high blood pressure, a cyst on his ankle and he had tuberculosis while attending basic training. He worked in a military hospital that had a gas leak which caused him to have severe hiccups and pain. With all his medical problems, he was removed from the military with no medical evaluations or ratings for a medical separation or retirement. 5. His military personnel records show: a. On 16 February 1995 he enlisted in the U.S. Army Reserve Delayed Entry Program in the rank and pay grade of private/E-1. During the process of enlisting he and a Government official completed DA Form 3286 (Statement of Understanding (Army Policy)) which stated he understood the Army’s policy on alcohol and drug abuse and that it was the Army’s intent to prevent alcohol and drug abuse in order to perform its mission, to ensure its combat readiness, and to protect the health and welfare of its Soldiers. Further, he understood that any drug abuse by a Soldier is against the law, violates Army standards of behavior and duty performance and that such abuse would not be tolerated. The illegal use of narcotics, or prescription drugs, or any use of marijuana or other illegal substances could lead to criminal prosecution and/or discharge under other than honorable conditions either by court-martial or administrative separation. b. On 9 June 1995 he was discharged from the Delayed Entry Program and immediately enlisted in the Regular Army in pay grade E-2. He enlisted in the Regular Army for a period of 6 years and for training in military occupational specialty (MOS) 91D (Operating Room Specialist). He completed training and was awarded MOS 91D. c. On 11 November 1996, a medical doctor prepared a memorandum for the applicant’s company commander at Fitszimmons Army Medical Center, Aurora, Colorado. The psychiatrist stated the applicant received treatment for cocaine dependence with physiological dependence and alcohol abuse at the William Beaumont Army Medical Center, El Paso, Texas. He was in their residential program from 18 September through 6 October 1996. His rating within their program was average. His prognosis was primarily dependent upon him abstaining from chemical abuse and continued out-patient treatment plus support from his chain of command. The psychiatrist stated it was Department of Defense guidance to return service members to full duty commensurate with their training, rank and experience. The psychiatrist concluded recommending the applicant receive stabilization for 1 year at his current unit of assignment to continue rehabilitative treatment. d. The applicant was reassigned to a medical company at Fort Campbell, Kentucky. e. On 19 March 1997, he submitted a urinalysis and he tested positive for cocaine. f. On 31 March 1997 a unit noncommissioned officer (NCO) counseled him recording his counseling on DA Form 4856 (General Counseling Form). He was told he was command referred to the post Army Drug and Alcohol Prevention and Control Program (ADAPC). g. Also on 31 March 1997 he prepared a sworn statement attesting to the fact he had used cocaine twice in June or July 1996. He self-referred himself to the ADAPC at Fitszimmons Army Medical Center as a self-enrolled patient. He explained he did not understand his recent positive urinalysis because he had not used cocaine in 8 months. Under oath he stated he had not used cocaine at Fort Campbell. He also signed DA Form 3881 (Rights Warning Procedure/Waiver Certificate) as he underwent an investigation by the U.S. Army Criminal Investigative Command for wrongful possession and use of a controlled substance. h. On 3 April 1997 he was interviewed and prepared a second sworn statement. He admitted withdrawing cash from his account and traveling to Clarksville, Tennessee to purchase cocaine. He admitted to staying in Clarksville and using the cocaine he purchased on 1 April 1997. He sold personal property on 2 April 1997 to obtain cash to purchase more cocaine the same day. He acknowledged reporting to work late and informing his NCO he had used drugs which led to his delayed arrival at work. He said he needed help with his cocaine abuse. When directly asked by an investigator if he knowingly and willingly possessed and used cocaine, he said he had acknowledging this fact with his signature on his sworn statement. i. He was flagged from receiving favorable personnel actions. On 15 April 1997, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of cocaine. During a closed hearing he was reduced to private/pay grade E-2, suspended, to be automatically remitted if not vacated before 10 August 1997. His sentence also included forfeiture of pay of $524 per month for 1 month and extra duty for 45 days. j. There are multiple memorandums attesting to the fact he tested positive for cocaine on 19 March, 2 April and 17 June 1997. k. On 1 July 1997, his commanding officer who imposed nonjudicial punishment on 15 April 1997 vacated his suspended punishment reducing him to private/pay grade E-2 effective 15 April 1997. A urinalysis showed he tested positive for cocaine on 17 June 1997. This action is recorded on DA Form 2627- 2 (Record of Supplementary Action under Article 15, UCMJ) and it is filed in his record. l. On 2 July 1997 a military dentist attested to the fact the applicant had surgery to remove his wisdom teeth on 11 June 1997. The dentist prescribed narcotic pain medication, Lortab, on the date of surgery. On 14 June 1997 the applicant returned to the dental clinic because he was still in pain from the removal of his wisdom teeth. On that date he was given a prescription for narcotics, Tylox. He stated both of these narcotic pain medications would show up during a urinalysis test. m. There are multiple general counseling forms filed in his record showing: * on 2 April 1997, he was late for work admitting to using drugs which impacted his ability to get to work on time * on 16 April 1997, received instructions for his extra duty assignments including reporting to counseling as directed and on time * on 27 June 1997, for testing positive for cocaine on 17 June 1997 * on 8 July 1997, he was told administrative separation action was being contemplated by his chain of command n. On 17 July 1987 he underwent a medical examination in preparation for his administrative separation prior to his expiration of term of service. He completed Standard Form (SF) 93 (Report of Medical History) indicating he had the following medical problems: swollen and painful joints; frequent or severe headaches; eye trouble; sinusitis; pain or pressure in his chest; problems with his blood pressure; cramps in his legs; frequent indigestion; adverse reaction to serum, drugs or medication; tumor, growth, cysts or cancer; rupture or hernia; foot trouble; depression or excess worry; and, loss of memory or amnesia. He stated he underwent a hernia operation and for a growth on his left ankle. He also received in-patient treatment for substance abuse. A medical provider completed SF 88 (Report of Medical Examination) indicating the applicant did not have any personality deviation under a psychiatric clinical evaluation. He further indicated the applicant was symptomatic for pes planus (flat feet). The medical provider found the applicant met the standards of Army Regulation 40-501 (Standards of Medical Fitness) for retention or separation from the Army. He had no profile ratings of three or four which would indicate further medical evaluation was required prior to administrative separation. o. On 7 October 1997, the clinical director for the Fort Campbell Community Counseling Center prepared a memorandum attesting to the fact the applicant was enrolled in the post program for cocaine dependence. He failed to attend numerous counseling sessions during the period from 31 March 1997 through the date of the memorandum. He felt his spiritual program better met his needs than the program offered on post. His progress and participation in the post program was rated "Fair." While in the counseling program he underwent numerous random urinalysis tests testing negative on five different dates. p. On 4 December 1997, his company commander initiated separation action under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9 for alcohol or other drug abuse rehabilitation failure. His company commander determined he was a drug abuse rehabilitation failure in coordination with the post counseling program. He recommended the applicant’s separation prior to his expiration of term of service with a character of service of under honorable conditions and issuance of a General Discharge Certificate. He was advised of his rights and acknowledged receiving his notification memorandum with his signature. His rights were: * to consult with military counsel or civilian counsel at his personal expense * to submit statements * to obtain copies of all documents used in the preparation and processing of his administrative separation packet * to waive his rights in writing q. On 11 December 1997, his former unit commander at Fitszimmons Army Medical Center prepared a memorandum attesting to the fact the applicant had self-enrolled in the ADAPC in June 1996 for substance abuse. Prior to his departure from Colorado, he had successfully completed Track III at the William Beaumont Army Medical Center. [Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program) in effect at the time of the applicant’s service stated there were three parts to the Army drug and alcohol rehabilitation program. Track III was the residential medical treatment program with nonresidential treatment follow-up. Enrollment in this track was limited to those personnel who were evaluated by a physician who determined residential treatment was required because of longstanding abuse or when a prognosis for recovery was favorable. Enrollment in Track III was for 360 days with the time starting when a Soldier was command referred into the program.] r. On 12 December 1997 his company commander prepared a memorandum attesting to the fact the applicant had self-enrolled into the ADAPC program for substance abuse in July 1996. Upon reassignment to Fort Campbell, he tested positive for cocaine on three separate dates. From his assessment, he determined the applicant was an ADAPC program failure. s. Also on 12 December 1997 his company prepared a memorandum recommending the applicant’s administrative separation under Army Regulation 635-200, chapter 9. His commander stated he had declared the applicant an alcohol and other drug abuse rehabilitation failure after consulting with his rehabilitation team. The team determined Army rehabilitation efforts were no longer practical and that he lacked potential for continued Army service. He concluded his memorandum by recommending the applicant receive an Honorable Discharge Certificate. t. On 15 December 1997 the separation approval authority approved the company commander’s recommendation to separate the applicant prior to expiration of term of service. He waived the requirement for a rehabilitative transfer and directed issuance of an Honorable Discharge Certificate. u. On 17 December 1997 personnel at Fort Campbell issued Orders 351- 0013 discharging the applicant from the Regular Army effective 9 January 1998. The authority for his separation shown on his orders is Army Regulation 635-200, chapter 9. His separation designator code is shown as "JPC." v. Accordingly, on 9 January 1998 he was honorably discharged from the Regular Army. He was issued a DD Form 214 documenting his active service of 2 years, 7 months and 1 day. In pertinent part, his DD Form 214 shows the following: * Block 4a (Grade, Rate, or Rank) – PV2 (Private Two) * Block 4b (Pay Grade) – E2 * Block 12h (Effective Date of Pay Grade) – 15 April 1997 * Block 18 (Remarks) – among the mandatory entries the statement "Member has not completed first full term of service." * Block 23 (Type of Separation) – discharge * Block 25 (Separation Authority) – Army Regulation 635-200, chapter 9 * Block 26 (Separation Code) – "JPC" * Block 27 (Reentry Code) – 4 * Block 28 (Narrative Reason for Separation) – drug rehabilitation failure w. The applicant applied to the Army Discharge Review Board (ADRB) requesting a change to his narrative reason for separation. Upon their review, the ADRB determined the evidence of record established the fact that he was properly counseled and afforded a reasonable opportunity to participate in the drug rehabilitation program. The ADRB determined his reason for discharge was both proper and equitable. By a unanimous decision, the ADRB denied his request to change his narrative reason for separation. 6. The applicant provided the following evidence. a. His DA Form 3822 (Report of Mental Status Evaluation) showing a psychiatrist had reviewed the findings of a behavioral health specialist who interviewed the applicant during the processing of his administrative separation. The applicant’s behavior was normal. He was fully alert, fully oriented, and his mood was unremarkable. His thinking process was clear and his thought content was normal. His memory was good. He had the mental capacity to understand and participate in administrative separation proceedings; he was mentally responsible; and, he met the medical retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 meaning he was qualified for retention or administrative separation as determined by his chain of command. b. He provided excerpts of his service treatment record, civilian treatment record and his VA record. During his military service he did take Antabuse for his substance abuse. He received treatment for bilateral pes planus, a mild diffuse disc bulge with central protrusion and he had mild to moderate loss of disc height and signal at the L5-S1. Radiological reports showed he had bilateral degenerative facet disease of his spine. Reviewing his VA record, on or about 29 January 2008 he had the following ratings: * right ankle rating of 20 percent * left ankle rating of 10 percent * right knee rating of 10 percent * left knee rating of 10 percent * entitlement to service connection for a back disability, to include secondary to service connected disabilities of the knees, feet and ankles (on appeal, these conditions were referred back to the VA for further examination) 7. As the applicant is requesting entry into the DES and subsequent evaluation for a medical separation or retirement, his application and its supporting evidence were reviewing by the Army Review Boards Agency senior medical doctors who provided the Board with a medical review prior to its deliberation. See "Medical Review." 8. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes the Army Disability Evaluation System 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. Effective 19 January 2017, the DES legacy process will be used for Army Veterans referred to the DES by the Army Board for Correction of Military Records (ABCMR). The Secretary of the Army or designee approves requests for legacy processing on a case-by-case basis. The medical evaluation board convening authority will assign a physician or physicians to conduct the required examination(s). The examinations will meet the minimum criteria of the VA medical examinations. Medical conditions evaluated during the DES will solely consist of those conditions for which a P3/P4 profiles was approved and any other conditions which the physician conducting the MEB finds individually or in combination are not likely to meet medical retention standards. Cases referred by the ABCMR address conditions in the context of their status at the time of the Veteran’s separation. 10. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 11. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 12. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 13. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant was discharged for rehab failure. He requests Army medical discharge processing and disability ratings. On 13Jun2003, the applicant was denied his previous application to the Army Discharge Review Board for change in reason for discharge. b. The applicant self-enrolled into the ADAPC (Alcohol and Drug Abuse Prevention Council) program for substance abuse while at the Fitzsimons AMC (in Colorado) in July 1996. He participated in treatment for Cocaine Dependence with Physiological Dependence and Alcohol Abuse from 18Sep1996 through 06Oct1996. His participation was rated as 5 on a scale of 1 to 10. It should be noted that the 11Nov1996 memorandum from the Chief of the Residential Treatment Facility for Command at Fitszimons AMC, indicated that DoD guidance was to return the individual to full duties commensurate with training, rank, and experience; and that stabilization with his current unit for up to one year of rehabilitation, was encouraged. c. Within 4 months and while attached to Ft Campbell (in Kentucky), on 31Mar1997, the applicant was enrolled in ADAPC after testing positive for cocaine on 19Mar1997. He was command referred to report to Community Counseling Center for treatment. He had 3 positive urine tests for cocaine (19Mar1997, 04Apr1997, and 17Jun1997). The 07Oct1997 Memorandum of Record indicated that the applicant initially went to group regularly, and then he missed 8 appointments from 04Jun1997 to 17Sep1997. His progress was rated as fair based on his own report. He tested negative on random unit urinalysis testing on 5 dates from 29Apr1997 to 10Sep1997. It was noted that the 02Jul1997 letter from the Department of Dentistry Chief relayed that the applicant had undergone surgical removal of his wisdom teeth on 11Jun1997. He was prescribed Lortab 7.5mg (hydrocodone, a narcotic, and acetaminophen) pain medication; and later Tylox (oxycodone a narcotic, and acetaminophen) for continued dental pain. Both prescription medications would lead to positive opioid urine drug tests, but not cocaine. d. The applicant was separated from service under provision AR 635-200, chapter 9, for drug rehab failure. He underwent a Report of Mental Status Evaluation for chapter separation. His psychiatric evaluation was completely normal. He was found to have the mental capacity to understand and participate in proceedings. He was mentally responsible. He met retention standards of AR 40-501 chapter 3. He was psychiatrically cleared for any administrative action deemed appropriate by Command. In the 17Jul1997 Report of Medical History for chapter separation, the applicant endorsed swollen and painful joints and left ankle cyst; headaches (sinus); chest pain; high blood pressure (146/88); leg cramps; frequent indigestion (takes over-the-counter med); ventral hernia repaired in 1996; gynecomastia right breast; flat feet; he was worried about his chapter proceedings. In the Report of Medical Exam, the provider marked that the exam was abnormal for the feet; skin; and breast. Under Summary of Defects and Diagnosis: Pes Planus, Symptomatic; and Large Black Hairy Nevus Right Side of Back. He also wore glasses. He was deemed to be qualified for separation. The PULHES was 111121. e. In regard to the applicant’s request for medical discharge processing for injuries received while in service, JLV search showed that the applicant was total combined service connected by the VA for Limited Motion of Ankle (20%); Limited Motion of Ankle (10%); Tendon Inflammation (10%); Tendon Inflammation (10%); Mood Disorder (10%); Hypertensive Vascular Disease (10%); Flat Foot Condition (10%); Neoplasm, Malignant, Gynecological of Mammary (0%); 2nd Degree Burns (10%); Ventral Hernia (10%); and Deformity of Penis (0%). (1) Ankle condition. He stated that he had a cyst on his left ankle. (a) In-service 11Jul1997 showed report of aspiration of left ankle by family practice doctor in June 1997. He still had soreness. The x-rays were negative. He was given pain medication and heel lifts. (b) After discharge 14May1998 St Louis VAMC bilateral ankle films showed no radiographic findings. On 18Sep1998 he underwent ankle arthroscopy. The 12Nov1998 bilateral ankle MRI was normal. (2) Knee condition (rated as the Tendon Inflammation). After military service, the 22Feb1999 right and left knee films were negative. (3) Mood Disorder. The applicant stated that he currently has nightmares, depression, and anxiety. There were no in-service mental health treatment records; however, he did disclose during his separation exam that he was worried about the chapter proceedings (depression, short term memory loss). Records showed one admission after discharge from service, from 09Sep1999 to 10Sep1999 for Neurotic Depression; Cocaine Dependence, Continuous; and Benign Essential Hypertension. (4) Hypertensive Vascular Disease. Work-up of blood pressure began in service. (5) Flat Foot Condition. On 30Oct1997, the condition was treated with orthotics. (6) Pseudofolliculitis Barbae. Seen 05Sep1996. Managed with a no shaving profile. (7) Neoplasm, Malignant, Gynecological of Mammary. On 15Sep1997, the applicant was seen by dermatology and found to have a large lesion on his right posterior thorax that was biopsied on 03Nov1997. He also had a breast biopsy on 07Oct1997. He had a temporary no sit-up or push-up profile. (8) Back condition. He stated that he injured his back during basic training and could not do any training for a week. He provided a lumbosacral MRI from 10Jun2019 (over 20 years after discharge) which showed degenerative changes. (9) He stated that he developed tuberculosis. He was evaluated on 09Oct1997 by Community Health Nursing. The chest x-ray in July 1997 and was negative. The 14May1998 chest x-ray ordered for a positive PPD (TB test) showed no active pulmonary disease. (10) Hiccups. He described being exposed to a gas leak and developing hiccups with pain. 14Apr1997 Blanchfield ACH detailed he had 3 weeks of hiccups. He was treated with medication. CT of the chest was negative. (11) Ventral Hernia. Diagnosed December 1995. He underwent surgery in 1996. f. The reviewer did not find if the applicant had deployed. He did not have a behavioral health diagnosis or have any BH treatment visits while in service. Concerning the 03 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance, evidence does not reasonably support that there was a boardable behavioral health diagnosis at the time of his discharge to consider with respect to mitigation of the offences which led to his discharge. The applicant’s service was characterized as Honorable. It was noted that the applicant had fair success with the first drug rehab program in Colorado, but shortly thereafter, he changed station to Kentucky, which was not ideal for his continued sobriety. The Board at their discretion may consider changing the narrative reason for discharge to Secretarial Authority. g. There was no indication that any of the applicant’s conditions required prolonged profiling or prescribed limitations of duty. Based on records available for review, evidence was insufficient to support that the applicant had conditions which failed medical retention standards in accordance with AR 40-501 chapter 3. It appeared that the applicant’s medical conditions were duly considered during separation processing. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion. The Board considered the applicant statement, his record of service, the reason for his separation. The Board considered the medical records, VA documents provided by the applicant and the review and conclusions of the advising official. Evidence of record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the DD Form 214. The Board determined there was insufficient evidence to support reinstatement of his rank and pay grade to private first class (PFC)/pay grade E-3. The Board concurred with the medical opinion finding insufficient evidence to warrant entry into the disability evaluation system or the disability evaluation system showing he was unfit for continued active service with assignment of disability ratings for his behavioral health and physical health medical conditions. Furthermore, the Board determined there was no error on the applicant’s DD Form 214 and no correction has merit. The Board concluded there was insufficient evidence of an error or injustice which would warrant a correction to his records. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XX XXX DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, United States 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 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. 2. Army Regulation 600-85 (The Army Substance Abuse Program) in effect at the time provided comprehensive alcohol and drug abuse prevention and control policies, procedures, and responsibilities for Soldiers and their chain of command of all components, Army civilian corps members, and other personnel eligible for services. a. The Surgeon General of the Army and their support staff have responsibility for the medical aspects of alcohol and other drug abuse in the Army. The Surgeon General was required to provide the resources, professional services, and technical assistance required to support ADAPC. This included medical doctrine for specialized training of physicians and other clinical personnel in the areas of alcohol and other drug abuse prevention, education, identification, and rehabilitation. In addition, they provided the technical guidance, logistical support, and quality control of all aspects of biochemical testing required by the Department of Defense (DoD). Public Law 92-192 dated 28 September 1971 mandated a program for the identification and treatment of drug and alcohol dependent persons in the Armed Forces. b. At the installation, the installation commander and the U.S. Army Medical Center or medical department activity were to ensure adequate and appropriate medical services and clinical support to the ADAPC. A physician was appointed to perform the medical evaluations and diagnostic service for the ADAPC. The physician also served as the clinical consultant to the ADAPC. Duties included ensuring commanders were notified when alcohol or other drug abuse was suspected and clients referred to ADAPC. c. The ADAPC is a manpower conservation program with the following functional areas: prevention, education, identification, rehabilitation, treatment, program evaluation and research. At the time it implemented pertinent DoD policies, directives and instructions. d. In pertinent part, Soldiers identified as illegal drug abusers will, as appropriate, be considered for disciplinary action under the UCMJ in addition to administrative actions such as separation. Enlisted personnel with fewer than 3 years of service who were identified in two separate instances of drug abuse will be processed for separation. For Soldiers diagnosed as having any illegal drug dependency in accordance with the Diagnostic and Statistical Manual for Mental Health will be detoxified and given appropriate medical treatment. These Soldiers normally do not have potential for continued military service and should not be retained in the service. Prior to separation, they may be afforded the opportunity for rehabilitative treatment through an Army residential treatment facility. Soldiers who fail to participate adequately in or to respond successfully to rehabilitation will be processed for administrative separation and not be provided another opportunity for rehabilitation except under the most extraordinary circumstances, as determined by the clinical director in consultation with the unit commander. e. The rehabilitation of alcohol and other drug abusers is a command responsibility. All commanders must have a working knowledge of the various program elements within ADAPC. Rehabilitation begins when an individual is identified as being involved with alcohol or other drug abuse or illegal abuse. Track III treatment provides residential treatment of 6 to 8 weeks’ durations with mandatory follow-up period for a total treatment program of 1 year. The residential treatment is under the recommendation of a physician and treatment will be managed by a physician. f. When a commander in consultation with ADAPC staff determines that further rehabilitation measures are not practical, Soldiers who are identified a second time illegal drug abusers will be separated under Army Regulation 635- 200. 3. 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 the Army Drug and Alcohol Prevention and Control Program (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. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The commander determines that further rehabilitation efforts are not practical, rendering the Soldier a rehabilitation failure in consultation with the Soldiers rehabilitation team. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions. However, an honorable discharge is required if restricted-use information was used. 4. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Table 3-1 includes a list of the RA RE codes. * An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the Army; they are qualified for enlistment if all other criteria are met * An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted * An RE-4 applies to Soldiers separated from the last period of service with a nonwaiverable disqualification 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty. Their primary purpose is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data. The SPD code of "JPD" is the correct code for Soldiers separated under chapter 9 of Army Regulation 635-200. 6. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. The cross reference table shows the SPD code and a corresponding RE code. At the time of his discharge, the SPD code of "JPD" had a corresponding RE code of "4." 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes the Army Disability Evaluation System 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 implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System (DES)); DoD Manuel 1332.18 (DES Volumes 1 through 3). a. The Surgeon General of the Army will establish and interpret medical standards for retaining Soldiers on active duty. b. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a medical condition that meets the medical retention standards of Army Regulation 40-501. c. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of medical evaluation boards, physical evaluation boards, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. d. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of Army Regulation 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation. e. A medical evaluation board is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40- 501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. f. The physical evaluation board (PEB) determines fitness for purposes of Soldiers’ retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The physical evaluation board also makes certain administrative determinations that may benefit implications under other provisions of law. The PEB is not a statutory board. It is a fact finding board evaluating the physical condition of the Soldier against the physical requirement of the Soldier’s office, grade, rank or raring. g. The PEB may permanently retire a Regular Army Soldier if he has at least 20 years of service as defined in section 1208, Title 10, U.S. Code. h. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separated or retired for physical disability. i. The DES legacy process will be used for Army Veterans referred to the DES by the Army Board for Correction of Military Records (ABCMR). The Secretary of the Army or designee approves requests for legacy processing on a case-by-case basis. The VA Form 21-0819 (DOD Referral to Integrated Disability Evaluation System (IDES)) will not be used, to include cases referred by the ABCMR when the applicant does not have an active status in the U.S. Army. The VA will not conduct the examination upon which the MEB findings are based. Instead, the MEB convening authority will assign a physician or physicians to conduct the required examination(s). The examinations will meet the minimum criteria of the VA medical examinations. Medical conditions evaluated during the DES will solely consist of those conditions for which a P3/P4 profiles was approved and any other conditions which the physician conducting the MEB finds individually or in combination are not likely to meet medical retention standards. Cases referred by the ABCMR address conditions in the context of their status at the time of the Veteran’s separation. 8. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, retirement and related policies and procedures. Chapter 3 describes the various medical conditions and physical defects which may render a Soldier unfit for further military services. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of duty; may compromise or aggravate the Soldier’s health or well-being, if they were to remain in the military Service such as frequent clinical monitoring; may compromise the health or well-being of other Soldiers; and may prejudice the best interest of the Government if the individual were to remain in the military Service. Soldiers who do not meet the required medical standards will be evaluated by a medical evaluation board. The general policy states that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions in this chapter to a medical evaluation board. 9. Title 38, U.S. Code, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 11. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it direct or recommend correction of military record(s) to remove an error or an injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. It begins its consideration of each case with the presumption of administrative regularity meaning what Army personnel did at the time of the Soldier’s or Veteran’s area of service was administratively correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010489 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1