BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160001544 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: 23 May 2017 DOCKET NUMBER: AR20160001544 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: 23 May 2017 DOCKET NUMBER: AR20160001544 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of the narrative reason for his separation from "Drug Abuse Rehabilitation Failure" to "Disability Retirement." 2. The applicant states he had an undiagnosed medical condition (post-traumatic stress disorder (PTSD) with depression and anxiety) when the Army honorably discharged him in 1990. He believes he should have received a medical retirement. He never waived his right to a hearing (because of unawareness). 3. The applicant provides: * 1990 statement from a psychologist * 2010 diagnosis letter (to the Department of Veterans Affairs (VA)) * VA progress notes 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. Having had prior service, the applicant enlisted in the Regular Army (RA) on 29 September 1978 and held military occupational specialties 11B (Infantryman) and 77F (Petroleum Supply Specialist). 3. He served through multiple reenlistments in a variety of stateside or overseas assignments, including two tours in Germany, and he attained the rank/grade of sergeant first class (SFC)/E-7. 4. On 10 September 1989, while enrolled in the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), the applicant tested positive for THC. He was declared a drug rehabilitation failure. 5. On 11 December 1989, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 9 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for lack of potential for continued Army service and that further rehabilitation efforts were no longer practical. He recommended an honorable discharge. 6. On 11 December 1989, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for drug rehabilitative failure, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He indicated he understood he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He requested consideration of his case by an administrative separation board and personal appearance before an administrative separation board. 7. Subsequent to the applicant's acknowledgement, on 14 December 1989, his immediate commander initiated separation action against him in accordance with chapter 9 of AR 635-200 by reason of drug rehabilitative failure. 8. On 28 December 1989, the intermediate commander recommended approval. He stated he interviewed the applicant on 27 December 1989 and based upon this interview, the recommendation from his chain of command, and as a result of his failure in rehabilitation while enrolled in ADAPCP, he (the intermediate commander) believed a discharge would be in the best interests of the Army and the applicant. During his interview, the applicant freely admitted to drug use while in his rehabilitation program. His positive reading in August 1989 after a late April 1989 referral would indicate that he was in fact a bona fide candidate for inclusion in the program and was properly referred by his immediate commander and enrolled on 27 April 1989. His weekly attendance at counselling sessions and urinalysis testing further supported this. 9. On 7 March 1990, an administrative separation board convened to consider if the applicant should be retained. The applicant and his counsel were present. The administrative separation board determined that the allegation of drug rehabilitation failure was supported by the preponderance of the evidence and recommended the applicant be honorably discharged. 10. On 19 March 1990, following review for legal sufficiency, the convening/separation authority approved the administrative separation board's findings, ordered the applicant discharged under the provisions of chapter 9 of AR 635-200, and directed the applicant be furnished an Honorable Discharge Certificate. Accordingly, the applicant was discharged on 27 March 1990. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 27 March 1990 under the provisions of chapter 9 of AR 635-200 by reason of "Drug Abuse Rehabilitation Failure" with an honorable characterization of service. This form further shows he completed 13 years, 5 months, and 29 days of active duty service. 12. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 13. He provides a psychological evaluation report together with his VA progress notes. The Army Review Boards Agency (ARBA) forwarded his medical documents to a psychologist/medical advisor for review. On 14 November 2016, the psychologist rendered an advisory opinion. After reviewing the available records, the advisor stated: a. At the time of the applicant's discharge, it does not appear that he had any diagnosed mental health conditions other than substance use. In February 2016, the VA assessed him as 70 percent disabled for PTSD with depressive disorder and anxiety. He had earlier awards for PTSD, including a 50 percent rating for PTSD that was effective in 2010. An initial claim of PTSD was made to the VA in 2005, but rejected. The rejection of the claim was reversed by the VA on appeal in 2010. b. The evidence does not show that at the time of his discharge providers believed that the applicant was unable to do his work owing to PTSD or that he had had a year-long opportunity to recover from his PTSD by receiving appropriate treatment for it. At the time of his discharge he was in treatment for cannabis use. The available records showed him to have been an effective Soldier throughout his career in the Army. One provider opined that his trauma was an injury the applicant sustained as a Soldier; however, no evidence is provided that after this injury the applicant was not performing effectively as a Soldier. In fact his record is replete with evidence that he was a good noncommissioned officer. He did not meet criteria for referral to an MEB at the time of his discharge. An applicant’s failure to meet the standard for medical evaluation board referral does not mean that his diagnosis and VA rating are incorrect. The VA conducts evaluations based on different standards and regulations than the Army does. A VA diagnosis and disability rating does not determine an entitlement to a medical retirement or separation. c. The applicant has not produced evidence showing he was incorrectly discharged. In conclusion, based on the information provided by the applicant and a review of relevant records and regulations, the applicant’s claim that he should have been medically retired from the military because of his PTSD or other behavioral health disorders, including anxiety and depression, is unsubstantiated. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in an entry-level status and an uncharacterized description of service is required. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). Army Regulation 40-501 does not list alcoholism or alcohol abuse as a condition that requires referral to a medical evaluation board. 3. Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a medical evaluation board to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status. If the medical board determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board. The physical evaluation board evaluates all cases of physical disability equitably for the Soldier and the Army. It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. DISCUSSION: 1. The evidence of record shows the applicant abused illegal drugs and was provided opportunities to overcome his abuse including counseling and referral to and enrollment in a drug prevention and control program. However, he showed poor rehabilitation potential as evidenced by his positive test for THC. He was therefore declared a rehabilitation failure and accordingly his immediate commander initiated separation action against him. 2. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. There does not appear to be an error or an injustice in the processing of his discharge. 3. He was discharged under the provisions of chapter 9 of AR 635-200 due to drug abuse-rehabilitation failure. Absent his continued drug abuse, there was no reason to refer him to a prevention and control program. Additionally, absent his rehabilitation failure, there was no other fundamental reason to process him for discharge. The underlying reason for his discharge was his drug abuse rehabilitation failure. 4. The advising psychologist found that, based on the information provided by the applicant and a review of relevant records and regulations, the applicant’s claim that he should have been medically retired from the military because of his PTSD or other behavioral health disorders, including anxiety and depression, is unsubstantiated. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001544 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001544 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2