ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING IN THE CASE OF: BOARD DATE: 22 October 2021 DOCKET NUMBER: AR20210011706 APPLICANT REQUESTS: The applicant requests, in effect, to change his honorable discharge to a medical retirement/separation, and to remove “chapter 16”. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •DD Form 214 (Report of Separation from Active Duty) •Department of Veterans Affairs (VA) Board of Veterans’ Appeals Docket Number16-12959, dated 22 December 2020 FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states he was having acquired psychiatric conditions in 1976 and1977. He could have been diagnosed better. He has been sober for more than 20years and has on going mental and physical conditions. He requests to remove“chapter 16” from his discharge. 3.On 3 June 1975, the applicant enlisted into the Regular Army for a period of 3 years. 4.On 11 February 1976, the applicant received non-judicial punishment (NJP) underthe provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) fordisobeying lawful orders from a superior noncommissioned officers. He did not appealthe NJP. 5.On 3 September 1976, he received NJP under the provisions of Article 15 of theUCMJ for failing to go to his appointed place of duty on multiple occasions. Theapplicant did not appeal the NJP. 6.His record contains an Alcohol and Drug Abuse Prevention and Control Program(ADAPCP) Progress Report dated 27 December 1976 that shows: •15 March 1976, the applicant was mandatorily referred to the ADAPCP forcounseling and rehabilitation for alcohol •he showed no desire to be rehabilitated and had no change in alcohol habits •the applicant had shown little or no real interests in attempting to overcomehis alcohol problem and had further displayed an uncaring and negligentattitude toward his duty responsibility and the well-being of those around him •the ADAPCP officer indicated the applicant would create serious disciplinaryproblems; would be a hazard to the military mission; would create a hazard tohimself; was resisting all attempts to be rehabilitated; and rehabilitation wouldnot produce the quality Soldier acceptable in the Army •the ADAPCP officer indicated the applicant should be separated from theservice for the good and safety of all concerned 7.On 27 December 1976, the applicant’s commander notified him that he was initiatingaction to discharge under the provisions of “chapter 16”, Army Regulation (AR) 635-200(Personnel Separations – Enlisted Personnel). The reason for the commander’sproposed action was the applicant’s rehabilitation failure under the alcohol rehabilitationprogram. The commander also informed the applicant of his rights. a.Legal counsel advised the applicant of the basis for his contemplated separationand its effects, the rights available to him and the effect of waiver of his rights. The applicant, who appeared of sound mind, personally and knowingly made the choices indicated in the election of rights. He elected not to submit a statement in his own behalf. b.His commander formally recommended him for separation action based on hishistory of alcoholism and being an alcohol rehabilitation program failure. In pertinent part, the commander stated that, the applicant did not desire to be rehabilitated. The commander did not believe further participation in the alcohol program would result in the applicant’s rehabilitation. He believed the applicant was a failure in the alcohol abuse rehabilitation program. c.The chain of command recommended approval of the separation action. On5 January 1977, the separation authority approved the applicant’s discharge from the Army and directed he be furnished an Honorable Discharge Certificate. 8.On 17 January 1977, a Statement of Medical Condition indicates the applicantunderwent a separation medical examination more than 3 working days prior to hisdeparture from place of separation, and he indicated to best of his knowledge, since hislast separation examination there had been no change in his medical condition. Theseparation medical examination was not available. 9.On 17 January 1977, the applicant was honorably discharged from the Army underthe provisions of “chapter 16”, AR 635-200. His separation program designator (SPD)was listed as JPB (alcohol or other drug abuse). He had completed 1 year, 7 months,and 15 days of net active service this period. 10.In support of his request, the applicant provided VA Board of Veterans’ Appealsdocuments that show, in pertinent part, as new and material evidence had beenreceived, the application to reopen the previously denied claim of entitlement to serviceconnection for an acquired psychiatric disorder, previously claimed as chronic nervousconditions, was granted. Service connection for an acquired psychiatric disorder,previously claimed as chronic nervous conditions, was granted. These documents wereprovided to the Army Review Boards Agency medical staff for review and consideration. 11.An award of a VA rating does not establish entitlement to medical retirement orseparation. The VA does not determine unfitness for duty. Operating under its ownpolicies and regulations, the VA awards ratings because a medical condition is relatedto service, i.e., service-connected. Furthermore, the VA can evaluate a veteranthroughout his lifetime, adjusting the percentage of disability based upon that agency'sexaminations and findings. The Army must find unfitness for duty at the time ofseparation before a member may be medically retired or separated. 12.The Board notes that, it appears chapter 16 of AR 635-200 was applied to theapplicant in error. The Board was not able to verify the policies, procedures, andguidance of such chapter. 13.Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and ControlProgram) prescribes policies and procedures for implementing, operating, andevaluating the Army Alcohol and Drug Abuse Prevention and Control Program. Inpertinent part, the regulation provides that: a.On or about 60 days after entry into the ADAPCP, the service-member's alcoholor other drug rehabilitation progress will be determined by the immediate unit commander, in consultation with the ADAPCP rehabilitation staff. If the service-member is declared a rehabilitation failure, he/she will be processed for separation from the Service under the provisions of AR 635-200. b.Rehabilitation is considered a failure if: (1) the service-member has clearly demonstrated that he is unable or unwilling to returned to effective duty after short-term rehabilitative efforts; (2) the service-member has clearly demonstrated inability or unwillingness to remain free from the abuse of alcohol or other drugs; or (3) the immediate unit commander, in consultation with the ADAPCP rehabilitation staff, has determined that the service-member has received maximum benefit from rehabilitation efforts and clearly demonstrates recalcitrance to the degree that further rehabilitative efforts in the military environment would not result in return to full effective duty. 14.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) providesthe authority and general provisions governing the separation of enlisted personnel priorto expiration of terms of service. Chapter 9 (alcohol or other drug abuse) containsguidance stating, in pertinent part, a member may be discharged from the Army whenthe member has been determined to be an alcohol or other drug rehabilitation failure inaccordance with AR 600-85. 15.Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensationfor 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. 16.Title 10, United States Code, section 1201, provides for the physical disabilityretirement of a member who has at least 20 years of service or a disability rated at least30 percent. Title 10, United States Code, section 1203, provides for the physicaldisability separation of a member who has less than 20 years of service and a disabilityrated at less than 30 percent. 17.In order to justify correction of a military record the applicant must show to thesatisfaction of the Board, or it must otherwise satisfactorily appear, that the record is inerror or unjust. The Board can consider the applicant's petition, service record, andstatements in light of the published guidance on equity, injustice, or clemency. 18.MEDICAL REVIEW: a.The Army Review Board Agency (ARBA) Medical Advisor reviewed thesupporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Documentation does not support the applicant held an in-service behavioral health diagnosis. Even if the referenced in-service hospitalization for depressive symptoms is considered, this does not equate to a psychiatric disorder or referral to a medical evaluation board. Rather, the applicant has a long history of substance abuse and misconduct originating pre-enlistment and continuing post-service. While the applicant is service connected, he was service connected over 40 years’ post-discharge. It is more likely than not the applicant’s discharge was related to pre-existing substance dependence and characterological difficulties rather than a psychiatric condition. Accordingly, a referral to DES is not warranted. b.The applicant was discharged on 17 January 1977 under AR 635-200, Chapter16, Alcohol or Other Drug Abuse, with an Honorable characterization. The basis for separation was the applicant was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) which determined the applicant had no desire to change his habits or be rehabilitated; he was recommended for separation. The applicant is requesting a medical retirement asserting he had an undiagnosed psychiatric condition in-service and “ongoing mental and physical conditions.” c.Due to the period of service, electronic active duty medical records are void. Theelectronic packet contains a December 1976 ADAPCP discharge summary. The summary reflects a mandatory enrollment in March 1976. However, by December, the ADAPCP provider determined the applicant had “no interest in attempting to overcome his alcohol problems” and “displayed an uncaring and negligent attitude toward his duty responsibility and the wellbeing of those around him.” The provider recommended separation from service. d.The applicant is 70% service connected for Major Depressive Disorder (MDD) asof 2019; 42 years’ post-service. In December 1996, the applicant was admitted for depression with homicidal ideation, homicidal ideation “not due to mental illness, and need for a drug rehabilitation program. The applicant noted he’d been hospitalized three times for depression. The applicant was discharged after sobering up with a diagnosis of Psychotic Reaction Secondary to Cocaine; symptoms remitted upon sobriety indicating his difficulties were substance related versus a behavioral health disorder. In July 1997, the applicant sought housing assistance. He reported “I’ve been in jail at least 24 times for burglary and thefts” and domestic violence. The applicant attended a variety of groups and supportive services with a diagnosis of Cocaine Dependence. e.In March 2001, he was admitted into a substance rehabilitation program. InAugust, providers noted prior treatment in 1987 to 1990 for a substance induced mood disorder. The applicant reported he’d never maintained sobriety in any program; he was diagnosed with Polysubstance Abuse. The applicant attended care until discharged in May 2003 for noncompliance. f.In February 2011, the applicant requested therapy for addictive behaviors;specifically, impulsive overspending. The applicant reported drug use started at age 9 when he began sniffing glue. From there, he used alcohol at age 14, barbiturates and uppers in adolescence, and cocaine in his 30s. The applicant reported extensive law enforcement interaction to include an arrest at 9 years of age, a year of incarceration in juvenile hall at age 14, another year of incarceration in juvenile hall at age 16, additional pre-enlistment juvenile hall stays totaling another five to six months, and adult incarcerations with the longest sentence of 6 years of which he served 20 months. The applicant denied any trauma or behavioral health symptoms when sober. The applicant was diagnosed with Impulsive Control Disorder and Polysubstance Abuse. In follow up, the applicant reported depression began when he was diagnosed in-service with hypertension leading to alcohol use. In August, the applicant completed treatment. In March 2013, the applicant went to behavioral health for ongoing depression with a diagnosis of Major Depressive Disorder (MDD). The applicant attended psychiatric appointments. g.In October 2019, the applicant had a Compensation and Pension (C&P) examdiagnosing MDD, Alcohol Use Disorder, and Anxiety Disorder NOS. However, it is noted the applicant was dishonest during the exam denying any substance use or misconduct pre-enlistment; rather focused on incidents beginning in-service and continuing through 2001. The provider did not check the records to know the applicant was dishonest creating a narrative supporting his request. The provider noted an in-service hospitalization for depression; however, it is unclear if this was by the applicant’s self-report or access to in-service records. Irrespective, the provider did not indicate the applicant held a diagnosis at discharge. The applicant continues to attend psychiatric visits with a MDD diagnosis. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical separation is not warranted. The Board considered the applicant's behaviors, his enrollment in ADAPCP, the opportunity for rehabilitation, the outcome of that enrollment, his Honorable discharge and the reason for his separation. Based on a preponderance of evidence, the Board determined that the narrative reason for his separation was not in error or unjust.BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XX 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. P104#yIS1 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, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three 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 three-year statute oflimitations if the ABCMR determines it would be in the interest of justice to do so. 2.Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program)prescribes policies and procedures for implementing, operating, and evaluating theArmy Alcohol and Drug Abuse Prevention and Control Program. In pertinent part, theregulation provides that: a.On or about 60 days after entry into the ADAPCP, the service-member's alcoholor other drug rehabilitation progress will be determined by the immediate unit commander, in consultation with the ADAPCP rehabilitation staff. If the service-member is declared a rehabilitation failure, he/she will be processed for separation from the Service under the provisions of AR 635-200. b.Rehabilitation is considered a failure if: (1) the service-member has clearly demonstrated that he is unable or unwilling to returned to effective duty after short-term rehabilitative efforts; (2) the service-member has clearly demonstrated inability or unwillingness to remain free from the abuse of alcohol or other drugs; or (3) the immediate unit commander, in consultation with the ADAPCP rehabilitation staff, has determined that the service-member has received maximum benefit from rehabilitation efforts and clearly demonstrates recalcitrance to the degree that further rehabilitative efforts in the military environment would not result in return to full effective duty. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides the authority and general provisions governing the separation of enlisted personnel prior to expiration of terms of service. Chapter 9 (alcohol or other drug abuse) contains guidance stating, in pertinent part, a member may be discharged from the Army when the member has been determined to be an alcohol or other drug rehabilitation failure in accordance with AR 600-85. 4. 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. 5. 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 rated 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 rated at less than 30 percent. 6. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. //NOTHING FOLLOWS//