MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 September 2001
         DOCKET NUMBER: AR2001057540

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Ms. Karen A. Heinz		Member
Mr. Melvin H. Meyer		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his general discharged be upgraded to honorable; that his enlistment bonus be restored, and that his education benefits under the GI Bill be restored.

APPLICANT STATES: That he had a medical condition and should have been discharged from the service. He had tested positive on a random drug test because someone at a club had given him a small cigar laced with marijuana. After one drag he knew it was not tobacco. Because he had bad allergies he had no sense of smell. He was punished for the marijuana offense with a fine and restriction to base. Because of his medical condition he was not supposed to work more than 12 hours a day but they made him work from 6:30 AM to 11 PM. He owes the government $5,000 for his enlistment bonus and lost his GI Bill which he paid for. He provides character reference letters from his parents and a Department of Veterans Affairs (DVA) rating decision in support of his request.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted as a combat engineer for 4 years active duty on 7 January 1999. His Statement for Enlistment shows that he enlisted for a Station of Choice and the Incentive Enlistment Program worth $11,000. His Statement of Understanding, which he initialed in his own hand, states that he understood that illegal use of narcotics can lead to criminal prosecution or discharge. It also shows that he enlisted for the Montgomery GI Bill (MGIB) and understood that, if he failed to complete at least 30 months of his 4-year enlistment, he would lose eligibility for the MGIB.

He completed training as a combat engineer and was assigned to Fort Riley, Kansas. On 25 July 2000, a Medical Corps officer prepared a memorandum for the applicant’s commander concerning possible administrative separation for a mental condition that interfered with his performance of duty. The doctor stated that the applicant had been seen on several occasions between 18 May and 25 July 2000, and had been recently hospitalized following bizarre behavior while on a field exercise. The doctor noted a diagnosis of acute stress disorder, which did not amount to a disability that would warrant disposition through medical channels. The applicant met medical retention standards but it was unlikely that he would be able to adequately perform his military duties because he was constantly anxious and unable to concentrate on his job.

On 27 September 2000, his supervisor formally counseled the applicant. The counseling statement noted that he was being considered for separation based on the doctor’s recommendation. He was also informed that he could be involuntarily separated for cause if he continued in his failure to comply with Army regulations, standards, and traditions.


The applicant’s records show that he provided a urine sample for a random drug test on 10 October 2000, which tested positive for the substance THC (marijuana). On 4 December 2000, the applicant was punished under Article 15, of the Uniform Code of Military Justice for wrongful use of marijuana. The punished imposed included reduction from the pay grade of E-3 to E-1, a fine, and restriction and extra duty for 45 days.

On 8 December 2000, the applicant was informed of the commander’s intent to recommend his separation for misconduct. The applicant acknowledged receipt of the notification and waived his right to consult with counsel or to submit statements on his own behalf. He also acknowledged that he might encounter prejudice in civilian life if a general discharge was issued. The commander also noted on his statement that the applicant expressly declined to consult with legal counsel.

The commander forwarded his request to separate the applicant for misconduct. On 18 January 2001, the separation authority approved the request and directed separation under honorable conditions. Effective 21 February 2001, the applicant was separated under the authority of Army Regulation 635-200 paragraph 14-12c(2). He had 2 years, 1 month, and 15 days creditable service.

The applicant provides a copy of his final Leave and Earnings Statement which shows that he was required to reimburse the Government $5156.26 for recoupment of his unearned enlistment bonus. $869 was withheld from his final pay and his remaining debt was $4338.13.

The applicant provided a copy of a 13 August 2001 rating decision by the DVA. He was diagnosed as having an adjustment disorder with mixed anxiety and depressed mood that was rated at 30 percent disabling. The DVA rating decision noted that a review of service medical records revealed that the applicant did not agree with Army values and was a conscientious objector who wanted out of the Army. He had to leave the Army for ethical reasons.

The letter of character reference provided by the applicant’s father, who states that he was a retired clinical psychologist, notes that his son was suffering from a deep depression from a tour in Bosnia. He believes his son should have been expeditiously processed out of the Army based on the doctor’s recommendation and not continued on active duty for another 7 months. His son was pushed beyond his impaired limits and given cruel, harsh, and extreme punishment for unknowingly ingesting marijuana. The letter from the applicant’s mother recounts a similar history of events as the father.



Title 10, United States Code, chapter 61, provides disability retirement or separation for a service member who is physically unfit to perform the duties of his office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

Title 38, United States Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service. The DVA, however, is not required by law to determine medical unfitness for further military service. The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

Chapter 5 of the regulation provides, in pertinent part, for the separation on the basis of a physical or mental condition that does not amount to a disability such as disturbances of perception, thinking, emotional control, or behavior that significantly impairs the performance of duty. However; notwithstanding that a soldier has a condition that provides for separation under this chapter, separation under any other provision of the regulation may still be appropriate and is not prohibited.

Army Regulation 601-210 provides the policy for the Regular Army enlistment program. It provides that persons who received an enlistment bonus and do not complete their terms of enlistment because of misconduct will be required to refund the percentage of the bonus that corresponds to the unexpired part of the total enlistment period.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:



1. The applicant was advised of the effects of a general discharge. He was afforded the opportunity to consult with counsel and submit statements in his own behalf, but he declined to do so. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2. The applicant was being considered for separation for his acute stress disorder, but a positive drug test for marijuana use eventually led to his separation for misconduct. There is no creditable evidence that the applicant had only taken one drag from a marijuana laced cigar or that he would have tested positive based on that limited use.

3. The applicant’s enlistment documents clearly showed that he acknowledged that he would lose eligibility for the MGIB if he failed to complete at least 30 months of his 4-year enlistment.

4. Enlistment regulations also require repayment of a portion of any enlistment bonus paid that was not satisfied through completion of the proper term of enlistment.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jl___ __kh____ __mm______ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001057540
SUFFIX
RECON
DATE BOARDED	20010918
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	20010221
DISCHARGE AUTHORITY	AR 635-200, CH 14
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.02
2.	108.00
3.	103.01
4.
5.
6.