IN THE CASE OF:	  

	BOARD DATE:	  3 June 2008

	DOCKET NUMBER:  AR20070017551 


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:

The applicant's reconsideration request is made through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's request that his discharge from the USAR be voided, that he be reinstated in the USAR, and that he be provided all back pay and allowances due as a result.  

2.  Counsel states, in effect, that he is providing a letter from the applicant's commander that clearly shows the last official notification received by the applicant was his commander's recommendation for his retention in the Army.  He further states that he is also providing a psychiatric evaluation of the applicant, dated 7July 2005, which substantiates the applicant was diagnosed with a Post Traumatic Stress Disorder (PTSD) subsequent to his return from deployment in Iraq.  He further states this evaluation explains the applicant's misconduct and his inability to understand the discharge process that took place.

3.  Counsel provides a Brief outlining the applicant's request and arguments; a letter from applicant's commander, dated 6 May 2004; and a psychiatric evaluation, dated 7 July 2005, in support of the application.  


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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070005892, on 11 September 2007.

2.  During its original review of the applicant's case, the Board concluded the applicant's discharge processing was accomplished in accordance with the applicable regulations, and that his discharge was both proper and equitable

3.  The applicant, through counsel, provides a 6 May 2004 Memorandum for Record (MFR) prepared by the applicant's unit commander as new evidence in support of the reconsideration request.  In this document concerning the applicant's processing under the provisions of Chapter 12, paragraph 12-1d, 
Army Regulation 135-178, based on his use of an illegal substance, the unit commander indicated that although the applicant admitted to the use of the substance in question, he had indicated that he had stopped using the substance since being tested, that he did not have a substance abuse problem, and that he was not addicted at the time.  The unit commander also stated that the applicant had expressed his willingness to correct the problem and committed to not repeating this behavior, and made a commitment to voluntarily enroll in the Army Substance Abuse Program under self-referral if it were required.  The commander finally recommended the applicant's retention in the best interest of the Army.  The commander also confirmed that he had advised the applicant that further substance use would not be tolerated by the command, and informed the applicant that if he again tested positive for substance abuse, he would be discharged.  

4.  Counsel and the applicant also provide a psychiatric evaluation completed by a civilian doctor on 7 July 2005.  The examining psychiatrist after evaluating the applicant concluded the applicant suffered from a Post Traumatic Stress Disorder (PTSD) as a result of emotional trauma he has suffered during his deployment to Iraq.   

5.  The applicant's record shows that he enlisted into the United States Army Reserve (USAR) for a period of 8 years on 17 April 1998.  In conjunction with his enlistment, a Methods of Fulfillment (DA Form 3540-R) was completed.  Section VI (Satisfactory Participation) of the DA Form 3540-R contains the statement "I must keep my commander advised of my current mailing address, where I will receive official correspondence, and I must reply to and comply with all official orders and correspondence that I may receive."  The applicant acknowledged his understanding of this requirement by authenticating the document with his signature on 17 April 1998.
6.  The applicant's record shows he was mobilized in support of Operation Enduring Freedom and served in Iraq from 1 February 2003 through 31 October 2003, at which time he was honorably separated from active duty by reason of completion of required service.  There are no medical records on file that indicate the applicant was suffering from any medical or mentally disabling condition at the time of his separation from active duty.  

7.  On 17 July 2004, during a command directed urinalysis test, the applicant tested positive for the illegal drug Amphetamine and Tetrahydrocannabinol (THC), and on 30 June 2005, the unit commander mailed the applicant a memorandum informing him of his intent to initiate separation action against him under the provisions of chapter 12, Army Regulation 135-178, for misconduct – abuse of illegal drugs, citing this positive test as the reason for his proposed action.  The memorandum gave the applicant a suspense date of 30 July 2005, to acknowledge receipt of the notification and to complete his election of rights.  

8.  The separation notification memorandum and attachments were mailed to the address of record the applicant had on file with his USAR unit in Bradley, South Carolina, and the packet was signed for by the applicant's mother three weeks before the required suspense date for the applicant to respond, which was 
30 July 2005.   

9.  The applicant’s Official Military Personnel File (OMPF) is void of any medical records that indicate he was suffering from a disabling physical or mental condition at the time of his separation processing.  

10.  On 8 September 2005, the separation authority directed the applicant be separated under the provisions of paragraph 7-12a, Army Regulation 140-148, with an under than honorable conditions discharge (UOTHC), and that he be reduced to the grade of private/E-1 (PV1).

11.  Headquarters, 81st Regional Readiness Command, Orders 05-263-00012, dated 20 September 2005, directed the applicant's UOTHC discharge and reduction in rank to PV1, effective 20 October 2005.

12.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) prescribes policies, standards, and procedures for the orderly administrative separation of Reserve Component (RC) enlisted Soldiers.  

13.  Paragraph 3-4 of the separations regulation, states, in pertinent part, that when the notification procedure is required for separation, the commander will notify the Soldier in writing of the following:  (1) basis of the proposed separation, 
including the circumstances upon which the action is based, and a reference to the applicable provisions of this regulation; (2) whether the proposed separation could result in a discharge from the Army, transfer from the ARNGUS to the USAR, or release from custody or control of the Army; (3) least favorable characterization or description of service authorized for the proposed separation; (4) right to obtain copies of documents that will be sent to the separation authority supporting the basis of the proposed separation; (5) Soldier's right to submit statements and to consult with counsel; and (7) If the Soldier has 6 or more years of total active and reserve military service on the date of initiation of recommendation for separation, the Soldier's right to request an Administrative Board.

14.  Paragraph 3-4 of the same regulation further states, in pertinent part, that reasonable effort should be made to furnish copies of the notification letter to the Soldier through personal contact by a representative of the command.  If the Soldier cannot be contacted or refuses to acknowledge receipt of the notification, the notification letter will be sent by registered or certified mail, return receipt requested, to the most recent address furnished by the Soldier as an address for receipt or forwarding mail.  The Soldier's failure to respond to this notification within 30 calendar days from the date of receipt of the notice will constitute a waiver of his rights.  

15.  Chapter 12 of the same regulation establishes policy and prescribes procedures for separating members for misconduct.  It’s states in pertinent part that abuse of illegal drugs is serious misconduct and that discharge action will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more disciplinary infractions or incidents of other misconduct and processed for discharge a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  It further stipulates that the characterization of service for members separated under this provision will normally be Under Other Than Honorable Conditions, but a GD may be granted.  

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 provides guidance on presumptions of fitness.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of 


physical disability present with the requirements of the duties the Soldier 
reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

17.  PTSD, an anxiety disorder, was recognized as a psychiatric disorder in 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM).  The condition is described in the current DSM-IV, pages 424 through 429.  The Army used established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge. The specific diagnostic label given to an individual’s condition a decade or more after his discharge from the service may change, but any change does not call into question the application of then existing fitness standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge for misconduct – abuse of illegal drugs should be voided and that he be reinstated in the USAR, and the new evidence provided was carefully considered.  However, there remains an insufficient evidentiary basis to support granting the requested relief or to amend the original decision of this Board. 

2.  The unit commander’s memorandum provided by counsel as new evidence is clearly dated 6 May 2004, which is over two months prior to the applicant's positive urinalysis sample of 17 July 2004, which was the basis for his separation processing.  As a result, it is clear this was at least the applicant's second violation of the drug policy, and occurred after he had been informed by his unit commander, in the 6 May 2004 memorandum, that any further substance abuse would result in his discharge.  It also provides no substantive basis to conclude the applicant did not receive the subsequent separation notification.  As a result, it is concluded that the applicant's separation processing was accomplished in accordance with the applicable regulation.  

3.  By regulation, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  The applicant’s military medical record provides no indication that he suffered from a physical or mental condition that rendered him unfit to perform his military duties at the time of his release from active duty upon his completion of his deployment to Iraq, or at the 
time of his separation processing.  As a result, his subsequent PTSD diagnosis 
does not call into question the existing fitness standards applied to the applicant by military medical personnel at the time, and does not in and of itself indicate the applicant was ineligible for further service and/or was not capable of understanding the separation process as alluded to by counsel.  

4.  The evidence of record clearly shows the applicant violated the Army's drug policy on at least two separate occasions and that he was properly processed for separation as is required by regulation.  Notwithstanding the assertions of the applicant and counsel, his separation processing was accomplished in accordance with the applicable law and regulation and there is no evidence of an error or injustice related to this processing.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070005892, dated 11 September 2007.



      _______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.

ABCMR Record of Proceedings (cont)                                         AR20070017551



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ABCMR Record of Proceedings (cont)                                         AR20070017551


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