BOARD DATE: 27 February 2018 DOCKET NUMBER: AR20160000313 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20100027875, dated 12 May 2011. 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: 27 February 2018 DOCKET NUMBER: AR20160000313 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 27 February 2018 DOCKET NUMBER: AR20160000313 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 reconsideration of his previous request for amendment of his separation authority and narrative reason for separation. 2. The applicant states there was an injustice made at the time of his discharge on 14 September 1995. He and Specialist (SPC) M____ A____ were in the same unit and they both tested positive for cocaine, which led to his discharge. The difference was that SPC M____ A____ did not receive a discharge because he was one of the favorites of the chain of command. a.  Twenty years after his discharge, he learned from other members of his platoon that although he and SPC M____ A____ both of tested positive for cocaine in a urinalysis test, he was the only one who was actually discharged. b.  Captain (CPT) H____, their company commander, initiated discharges against him and SPC M____ A____, but it was all for show. He and SPC M____ A____ went through the clearing stations together, but SPC M____ A____ knew it was all for show and that only he would actually receive a discharge. c.  After completing the discharge process, SPC M____ A____ was given a few days off and then resumed duty, while he was discharged. This not only shows favoritism, but the actual circus that CPT H____ set in motion so that he would think he and SPC M____ A____ were both being discharged. He finds the situation appalling. d.  He does not have access to SPC M____ A____'s records, but the Army Board for Correction of Military Records (ABCMR), having access to SPC M____ A____'s military records, will find these statements are correct. e.  More than 3 years have passed since his discharge, but he feels the ABCMR should correct his records in the interest of justice. He is still in shock that CPT H____ would do such a thing. 3. The applicant provides: * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 23 April 1991 * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100027875 on 12 May 2011. 2. The applicant provides a completely new argument that was not previously considered and warrants consideration at this time. 3. Having prior honorable service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 29 April 1993. 4. Andrew Rader U.S. Army Health Clinic, Walter Reed Army Medical Center, Fort Myer, VA, memorandum, dated 11 August 1995, subject: Rehabilitation Failure in Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), informed his commander of the following: a.  The applicant was referred to the Community Counseling Center on 28 March 1995 for being in violation of company policy by having an illegal amount of alcohol in the barracks. He passed out while in formation, allegedly due to alcohol, and he was treated for dehydration at the Andrew Rader U.S. Army Health Clinic 6 months prior. b.  He was evaluated at the outpatient treatment facility on 29 March 1995. He attended education classes during the period 10 through 12 April 1995. He was medically evaluated on 17 April 1995 and he was diagnosed with "alcohol abuse by history." He was enrolled in the ADAPCP on 20 April 1995 during a rehabilitation meeting with his commander. c.  His treatment plan required total abstinence from alcohol and other drugs, attendance at outpatient treatment group once weekly, attendance at a minimum of one Alcoholics Anonymous meeting per week, one individual counseling session per month, compliance with the program's urinalysis testing policy, and random breathalyzer testing. d.  He reported his use of illicit drugs to his command while in the program and unit personnel stated he continued to drink alcohol. His inability to remain abstinent from alcohol and drugs and to comply with his treatment plan was indicative of a rehabilitation failure. e.  The clinical director cleared him for any administrative action designated by his command. 5. His DA Form 3822-R (Report of Mental Status Evaluation), dated 14 August 1995, shows his behavior was normal, he was fully alert and oriented, and his mood or affect was unremarkable. His thinking process was clear, his thought content was normal, and he had a good memory. He had the mental capacity to understand and participate in proceedings. He was mentally responsible and he met medical retention standards. He was psychiatrically cleared for any administrative actions deemed appropriate by his unit commander. 6. His Standard Form 88 (Report of Medical Examination), dated 24 August 1995, shows he was found qualified for separation. 7. On 29 August 1995, his commander notified him in writing of his intent to initiate separation action against him for drug use rehabilitation failure under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), paragraph 9-2(a). His commander recommended an honorable discharge. His commander informed him of his rights. 8. On 29 August 1995, the applicant acknowledged receipt of the commander's notification for separation. 9. On 29 August 1995, his commander requested the applicant's separation under the provisions of Army Regulation 635-200, chapter 9, paragraph 9-2(a). He stated the applicant had been counseled numerous times for his drug problem and his failure of ADAPCP Track II as the reason for the proposed action. 10. On 30 August 1995, he consulted with counsel who advised him of the basis for his contemplated separation and its effects and the rights available to him. He elected not to submit statements in his own behalf. He acknowledged he was not entitled to an administrative separation board and he could expect to encounter substantial prejudice in civilian life if he received a discharge under other than honorable conditions. 11. On 7 September 1995, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 9, paragraph 9-2(a), and directed the issuance of an Honorable Discharge Certificate. 12. On 14 September 1995, he was discharged accordingly. He completed 2 years, 4 months, and 16 days of creditable active military service during this period. His DD Form 214 shows the following entries: a.  item 23 (Type of Separation), Discharge; b.  item 24 (Character of Service), Honorable; c.  item 25 (Separation Authority), Army Regulation 635-200, chapter 9; d.  item 26 (Separation Code), JPC; and e.  item 28 (Narrative Reason for Separation) – Drug Rehabilitation Failure. 13. On 16 November 2001, the Army Discharge Review Board determined he had been properly and equitably discharged, and denied his request for a change in his characterization of service and/or reason for discharge. 14. On 12 November 2010, the applicant applied to the ABCMR and requested an upgrade of his separation authority and narrative reason for separation. He stated his discharge process included many discrepancies, to include: a.  Although possession of liquor in the barracks was against unit policy, the consumption of alcohol in the rooms was common practice among noncommissioned officers in his unit. b.  His discharge was based on his erroneous enrollment in the ADAPCP. c.  No proper medical assessment was conducted to enroll him in the ADAPCP. d.  He was harassed by U.S. Army Criminal Investigation Command officials and forced to become an informant. e.  He lied about his drinking and subsequent enrollment in ADAPCP in order to be discharged. f.  He only used cocaine once. g.  He was not properly advised by his chain of command, the ADAPCP counselor, or the servicing legal office staff. h.  He was not given the opportunity for a discharge hearing since the narrative reason for his separation was negative. i.  The narrative reason for his separation stigmatizes him in the eyes of society. 15. On 12 May 2011, the ABCMR denied his request for correction of his separation authority and narrative reason for separation. His narrative reason for separation was assigned because he was separated under the provisions of Army Regulation 635-200, chapter 9, due to his alcohol and/or drug rehabilitation failure. Absent the alcohol and/or drug rehabilitation failure, there was no fundamental reason to process him for discharge. The underlying reason for his discharge was his drug rehabilitation failure. The only valid narrative reason for separation permitted under that paragraph is "drug rehabilitation failure" which is correctly shown on his DD Form 214. REFERENCES: 1. Title 5, U.S. Code, section 552a(b) (Conditions of Disclosure), provides that no agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) 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 directs or recommends correction of military records to remove an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 3. Army Regulation 635-200, chapter 9, provides the authority and outlines the procedures for discharging enlisted personnel for alcohol or other drug abuse rehabilitation failure. A member who has less than 6 years of military service is not entitled to a board hearing. Discharge is 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 ADAPCP and the commander determines that further rehabilitation efforts are not practical, rendering the member a rehabilitation failure. This determination will be made in consultation with the rehabilitation team. Separations for alcohol abuse rehabilitation failure will be reported separately from separations for drug abuse rehabilitation failure. If the separation is based on both, the primary basis will be used for reporting purposes. a.  Paragraph 9-2(a) states a member who is enrolled in the ADAPCP for alcohol/drug abuse may be separated because of an inability or refusal to participate in, cooperate in or successfully complete such a program when: (1)  there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical, or (2)  long-term rehabilitation is necessary and the member is transferred to a civilian medical facility for rehabilitation. b.  Paragraph 9-4 states the service of members discharged under this section will be characterized as honorable or under honorable conditions (general). 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. SPD code JPD is the correct code for Soldiers separated under the provisions of Army Regulation  635-200, chapter 9. DISCUSSION: 1. The applicant contends that his separation authority and narrative reason for separation are unjust because he and another Soldier in his unit both tested positive for cocaine, which led to his discharge while the other Soldier was not discharged because he was one of the favorites in the chain of command. The applicant further contends the ABCMR would discover the truth in his story if the Board accessed the other Soldier's records. 2. The ABCMR considers cases based on the evidence in an applicant's service record and the evidence the applicant provides to support and strengthen the case. The ABCMR does not make decisions based on the service records of other Soldiers without their express permission, as this would violate Title 5, U.S. Code, section 552a(b). 3. The evidence of record shows the applicant, after receiving a medical evaluation on 17 April 1995 and a diagnosis of "alcohol abuse by history," was enrolled in the ADAPCP on 20 April 1995 during a rehabilitation meeting with his commander. His treatment plan required him to abstain from alcohol and drugs. The applicant reported his use of drugs to his command while in the ADAPCP and unit personnel reported he continued drinking. The ADAPCP declared him a rehabilitation failure because he was unable to abstain from the use of drugs and alcohol. 4. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The evidence of record confirms the applicant's discharge was accomplished in accordance with applicable regulations. 5. His DD Form 214 shows the separation authority as Army Regulation  635-200, chapter 9, and the narrative reason for separation as drug rehabilitation failure. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160000313 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000313 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2