IN THE CASE OF: 

		BOARD DATE: 18 October 2023

		DOCKET NUMBER: AR20230002887


APPLICANT REQUESTS: 

*	His honorable discharge due to alcohol or other drug abuse be changed to a 
medical retirement
*	He also requests an appearance before the Board by video or telephone

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
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 he was injured when he joined the military in 1979 and he was 
not diagnosed with depression until 2014. His mental health condition went 
undiagnosed. He also annotated his application to show he suffers from other mental 
health [conditions].

3.  The applicant enlisted in the Regular Army on 6 November 1979 for 3 years. He held 
military occupational specialty (MOS) 82C (Field Artillery Surveyor).

4.  While assigned to Fort Sill, OK, during initial entry training, he accepted nonjudicial 
punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ)), on 
11 December 1979, for disobeying a lawful order by having beer in the barracks on 
8 December 1979. His punishment consisted of a forfeiture of $104 pay.

5.  On 31 March 1980, he was assigned to Battery A, 2nd Battalion, 42nd Field Artillery, 
Germany with duties in his MOS. 

6.  On 10 November 1980, while attending the Alcohol and Drug Abuse Prevention and 
Control Program (ADAPCP), he accepted NJP under Article 15, UCMJ, for being drunk 
and disorderly on 23 September 1980. His punishment consisted of reduction from pay 
grade E-2 to E-1, a forfeiture of $104 pay, and 14 days of extra duty, and restriction.

7.  On 3 February 1981, he accepted NJP under Article 15, UCMJ, for failing to go to his 
appointed place of duty at the time prescribed (morning formation) on 22 December 
1980. His punishment consisted of a forfeiture of $100 pay, and 14 days of extra duty 
and restriction.

8.  On 12 March 1981, he accepted NJP under Article 15, UCMJ, for being drunk on 
duty as guard mount on 5 March 1981 and for failing to go to his appointed place of duty 
at the time prescribed on 6 March 1981. His punishment consisted of a forfeiture of 
$104 pay, and 14 days of extra duty, and restriction.

9.  An ADAPCP Progress Report, dated 14 April 1981, shows the applicant voluntarily 
entered ADAPCP from 30 September to 30 November 1980 and he was in the follow-up 
phase of Community Drug and Alcohol Assistance Centers (“CDAAC”.) He had fourteen 
scheduled sessions and he missed seven. On 2 April 1981, he was found to have in his 
possession 3 pipes which contained the residue of hashish (confirmed by military police 
station). He was told another drug/alcohol related incident would result in a chapter 9 
[discharge]. ADAPCP counselors recommended that he be declared a rehabilitation 
failure and eliminated from the Army.

10.  On 11 May 1981, the applicant’s commander concurred with ADAPCP’s findings 
and recommendation.

11.  On 19 May 1981, the applicant's commander notified the applicant separation 
action was being initiated to separate him under the provisions (UP) of Army Regulation 
(AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 9, due to alcohol 
or other drug abuse. The reason cited was “CDAAC”/ADAPCP failure. He was advised 
of his rights. The applicant acknowledged receipt. He declined legal counsel and an 
opportunity to submit statements in his own behalf.

12.  On 25 May 1981, the applicant's commander recommended that he be discharged 
UP of AR 635-200, chapter 9, due to alcohol or other drug abuse.

13.  On 22 June 1981, the approval authority directed the applicant’s discharge UP of 
AR 635-200, chapter 9, due to alcohol or other drug abuse. The separation authority 
stated the applicant entered the “CDAAC” program and was declared a failure. It was 
apparent the applicant was unwilling to remain free from drug use, any further 
rehabilitation attempts would have little or no effect.

14.  Accordingly, on 13 July 1981, the applicant was discharged UP of AR 635-200, 
chapter 9, by reason of alcohol or other drug abuse with an honorable discharge. He 
completed 1 year, 8 months, and 8 days of net active service this period.

15.  In regard to the applicant's request for a video/telephone appearance before the 
Board, Army Regulation 15-185, states an applicant is not entitled to a hearing before 
the Board; however, the request for a hearing may be authorized by a panel of the 
Board or by the Director of ABCMR.

16.  MEDICAL REVIEW:

    a.  Background: The applicant is requesting that his honorable discharge due to 
alcohol or other drug abuse be changed to a medical retirement The applicant indicated 
other mental health (depression) is related to his request. 
    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Below is a summary of information pertinent to this 
advisory: 
*	Applicant enlisted in the Regular Army on 6 November 1979. 
*	During initial training, he accepted nonjudicial punishment (NJP) on 
11 December 1979, for disobeying a lawful order by having beer in the barracks 
on 8 December 1979. 
*	On 10 November 1980, while attending the Alcohol and Drug Abuse Prevention 
and Control Program (ADAPCP), he accepted NJP under Article 15, UCMJ, for 
being drunk and disorderly on 23 September 1980.
*	On 3 February 1981, he accepted NJP under Article 15, UCMJ, for failing to go to 
his appointed place of duty at the time prescribed (morning formation) on 22 
December 1980.
*	On 12 March 1981, he accepted NJP under Article 15, UCMJ, for being drunk on 
duty as guard mount on 5 March 1981 and for failing to go to his appointed place 
of duty at the time prescribed on 6 March 1981.
*	An ADAPCP Progress Report, dated 14 April 1981 recommended he be declared 
a rehabilitation failure and eliminated. On 11 May 1981, the applicant’s 
commander concurred with ADAPCP’s findings and recommendation. 
*	On 13 July 1981, the applicant was discharged under AR 635-200, chapter 9, by 
reason of alcohol or other drug abuse with an honorable discharge. 

    c.  Review of Available Records Including Medical:
The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this 
case. Documentation reviewed included the applicant’s completed DD Form 149, his 
ABCMR Record of Proceedings (ROP), DD Form 214, documents from his service 
record and separation, as well as VBMS documents obtained by ARBA. The VA 
electronic medical record and DoD health record were reviewed through Joint 
Longitudinal View (JLV). Lack of citation or discussion in this section should not be 
interpreted as lack of consideration. 

    d.  The applicant asserted that other mental health is related to his request for 
upgrade. The applicant asserted that he was injured when he first joined the service but 
wasn’t diagnosed with depression until 2014. He believes his record should be 
corrected because his diagnosis was missed. He believes his honorable discharge 
(chapter 9 – alcohol or other drug abuse) should be changed to a disability retirement. 
    e.  The applicant’s time in service predates use of electronic health records (EHR) by 
the Army, hence no EHRs are available for review. His service record and supporting 
documents did not contain his service treatment records (STR), and no other records 
were provided to substantiate his claim. There is no evidence to suggest the applicant 
ever received mental health care outside of substance abuse care, that he was ever 
issued a permanent profile or was diagnosed with a condition that did not meet medical 
fitness standards in accordance with AR 40-501 during his period of service. In addition, 
there are no medical records to substantiate that he was injured or had any significant 
medical concerns while in the service. In his service record, there was an Alcohol and 
Drug Abuse Prevention and Control Program Progress Report. He entered ADAPCP on 
30 SEP 1980 and was in the follow up phase of the CDAAC. On 2 April 1981 he was 
found to have in his possession 3 pipes which contained residue of hashish. He had a 
meeting 9 March 1981 with leadership where he was informed that another drug or 
alcohol related incident would result in a chapter 9. Hence, the program recommended 
he be declared a rehabilitation failure and be eliminated from the Army. Given his failure 
at substance use rehabilitation, it is likely he had a substance use disorder, however 
that was also not documented. Regardless, substance use disorders are not med 
boardable conditions. 
    f.  Per the applicant’s VA EHR, he is 100% service connected for major depressive 
disorder (MDD). Per his application, he was not diagnosed until 2014. However, records 
obtained from VBMS show he was initially service connected at 30% for depression in 
2013 with an effective date of 2011. It is unclear when his service connection increased. 
The applicant has been engaged in mental health related care at the VA since 2011. He 
has been diagnosed with recurrent depressive disorder, MDD (to include with psychotic 
symptoms), adjustment disorder with mixed anxiety and depressed mood, alcohol use 
disorder, and cocaine use disorder. He has engaged in individual therapy and 
medication management. He initially presented to the VA for mental health support due 
to a “deep depression” secondary to a divorce from his wife of 26 years. Per his 
available records, the applicant was not diagnosed with depression until January of 
2012, approximately 31 years after his time in service. That said, during an intake on 9 
January 2012, the applicant did produce a letter from his primary care provider to the 
assessing social worker, which reportedly indicated he’d been having marital problems 
for 9 years, and he had been diagnosed with major depression back then. This same 
encounter reports a history of mental health treatment by his primary doctor in 1995 for 
depression with Lexapro. In his compensation and pension (C&P) evaluation, dated 1 
July 2013, it is stated that during a chapter 9 discharge examination on 20 May 1981 he 
was diagnosed with depression, however this record was not made available to this 
advisor/was not in his service record. No other data was provided.  
    g.  The burden of proof is on the applicant to provide contemporaneous evidence that 
he should have been medically retired or discharged during his time in service. Based 
on the available information, it is the opinion of the Agency Behavioral Health Advisor 
that there is insufficient evidence to support the applicant should have received a 
medical retirement or should now be referred to the DES.

    h.  The applicant asserted other mental health (depression) was present during his 
time in service and was “missed” and therefore he should have received a medical 
retirement. There was no evidence provided in the application or supporting documents 
to indicate he was diagnosed with potentially boardable mental health condition. There 
was evidence of a substance use disorder, and that he was a rehabilitation failure. The 
applicant’s C&P from 2013 indicates there was an evaluation as part of his separation 
(in May of 1981) where he was diagnosed with depression. Even with this data point, 
there is insufficient evidence to support the applicant was ever treated for depression, 
that he was diagnosed with a med boardable condition, nor that he was ever found unfit 
for duty, failed medical retention standards, or was placed on a permanent profile. 
Furthermore, even an in-service diagnosis of depression is not automatically unfitting 
per AR 40-501 and would not automatically result in medical separation processing. The 
applicant has since been service connected (100%) for MDD. However, VA 
examinations are based on different standards and parameters; they do not address 
whether a medical condition met or failed Army retention criteria or if it was a ratable 
condition during the period of service. Therefore, a VA disability rating does not imply 
failure to meet Army retention standards at the time of service, nor is it indicative of an 
injustice at the time of service. The applicant had significant misconduct during his time 
in service, though was discharged honorably. In regard to a medical retirement, his 
discharge process appears proper, equitable and free of error, and insufficient evidence 
has been provided to determine otherwise.

Kurta Questions:

    (1)  Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? Not applicable (NA).  

    (2)  Did the condition exist or experience occur during military service?  NA. 

    (3)  Does the condition or experience actually excuse or mitigate the discharge? NA


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service.  Upon review of 
the applicant’s petition, available military records and medical review, the Board 
concurred with the advising finding insufficient evidence to support the applicant should 
have received a medical retirement or should now be referred to the DES. The Board 
noted the opine that indicated the applicant’s discharge process appears proper, 
equitable and free of error, and insufficient evidence has been provided to determine 
otherwise. The applicant’s application provided insufficient evidence or supporting 
documents to indicate he was diagnosed with potentially boardable mental health 
condition. 

2.  The Board agreed there is insufficient evidence of in-service mitigating factors for the 
misconduct to weigh a clemency determination. Based on a preponderance of 
evidence, the Board determined the evidence presented does not demonstrate the 
existence of a probable error or injustice.  Furthermore, the Board determined the 
overall merits of this case are insufficient as a basis for correction of the applicant’s’ 
records to show his honorable discharge due to alcohol or other drug abuse be changed 
to a medical retirement. Based on the medical opine and preponderance of evidence 
the Board denied relief.

3.  The Board determined DES compensates an individual only for service incurred 
condition(s) which have been determined to disqualify him or her from further military 
service.  The DES has neither the role nor the authority to compensate service 
members for anticipated future severity or potential complications of conditions which 
were incurred or permanently aggravated during their military service; or which did not 
cause or contribute to the termination of their military career. These roles and 
authorities are granted by Congress to the Department of Veterans Affairs and executed 
under a different set of laws.

4..  The applicant’s request for a personal appearance hearing was carefully 
considered.  In this case, the evidence of record was sufficient to render a fair and 
equitable decision.  As a result, a personal appearance hearing is not necessary to 
serve the interest of equity and justice in this case.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	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, 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 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
Paragraph 2-11 contains guidance on ABCMR hearings, and it states that applicants do 
not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant 
a formal hearing whenever justice requires.

3.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set 
forth the basic authority for the administrative separation of enlisted personnel. 
Chapter 9 contained the authority and outlined the procedures for discharging 
individuals because of alcohol or other drug abuse. A member who had been referred to 
the ADAPCP for alcohol/drug abuse could be separated because of inability or refusal 
to participate in, cooperate in, or successfully complete such a program if there was a 
lack of potential for continued Army service and rehabilitation efforts are no longer 
practical. At the time of the applicant's separation an honorable or general discharge 
was authorized.

4.  AR 635-40 (Standards of Medical Fitness) establishes the Army Disability Evaluation 
System (DES) 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.

5.  AR 40-501 (Standards of Medical Fitness) provides that for an individual to be found 
unfit by reason of physical disability, he/she must be unable to perform the duties of his 
or her office, grade, rank, or rating. Performance of duty despite impairment would be 
considered presumptive evidence of physical fitness. Paragraph3-3b (1), as amended, 
provides that for an individual to be found unfit by reason of physical disability, he or she 
must be unable to perform the duties of his or her office, grade, rank, or rating. A 
physical profile rating of "3" in any of six rated categories (P-physical stamina, U-upper 
extremities, L-lower extremities, H-hearing, E-eyes, S-psychiatric) is a basis for referring 
a Soldier to the PDES.

6.  Title 38 U.S. Code 1110 (General - Basic Entitlement):  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.

7.  Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement):
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.

8.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230002887


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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