IN THE CASE OF:	  

		BOARD DATE:	        15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007182 


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 that her general discharge be upgraded to an honorable discharge or a medical discharge.

2.  The applicant states that she was an honorable Soldier and that she should have been furnished an honorable or a medical discharge.  She states that she was assaulted and that she has Post Traumatic Stress Disorder (PTSD), Depression, Fybromyalgia, shoulder problems, back and knee problems, and other problems as a result of her assault.

3.  The applicant provides a copy of her Department of Veterans Affairs (DVA) “Decision Review Officer Decision” dated 20 October 2008.

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.  On 13 August 1980, the applicant enlisted in the United States Army Reserve (USAR) in Columbus, Ohio, for 6 years, in the pay grade of E-1.  She successfully completed her training as a finance specialist.

3.  The applicant was promoted through the ranks to staff sergeant (E-6) and she reenlisted in the USAR for 6 years on 12 July 1986.  The applicant reenlisted in the USAR for 6 years on 8 July 1992.

4.  On 7 September 1993, the applicant was notified that she was being recommended for separation from the Army Reserve under the provisions of Army Regulation 135-178, chapter 7 for misconduct.  Her commanding officer cited a positive test for cocaine as a result of a urinalysis drug testing on 15 November 1992 as the basis for the recommendation for separation.  The applicant was advised of her rights and she was informed that the separation action would be suspended for 45 days to provide her an opportunity to exercise her rights and privileges.

5.  The applicant acknowledged receipt of the notification for separation on 1 October 1993 and in her acknowledgement, she indicated that she was requesting to have her case considered by a board of officers and that she was waiving her right to be represented by counsel.

6.  On 1 October 1993, the applicant submitted a Request for Conditional Waiver in which she voluntarily waived her right to have her case considered by an administrative separation board contingent upon her receiving a characterization of service or description of separation no less favorable than honorable or general.  In her request, she stated that she had never taken any illegal drugs of any kind.  She stated that if it had not been prescribed by her doctor, she didn’t take it and that she did not want to be kicked out of the Reserve.  She stated that she had no idea what went wrong; however, she did know that she had not done anything wrong.

7.  In a memorandum from Headquarters, 83rd USAR Command, Columbus, Ohio, an Assistant Staff Judge Advocate (SJA) informed the Office of the Deputy Chief of Staff of Personnel was notified that the paperwork related to the request for discharge, as well as documentation of a prior positive test for cocaine, had been reviewed.  The Assistant SJA stated that the applicant first tested positive for cocaine in March 1991 and that she was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He stated that the applicant tested positive in November 1992 and that she may be discharged under the provisions of Army Regulation 135-178, chapter 7, for misconduct or chapter 8 for alcohol or other drug abuse rehabilitation failure.  The Assistant SJA recommended that the applicant be furnished a general discharge.
8.  On 9 December 1993, the applicant was discharged from the USAR under the provisions of Army Regulation 135-178 and she was furnished a General Discharge Certificate.

9.  The DVA “Decision Review Officer Decision” that the applicant submits in support of her application shows that the applicant was awarded a 30 percent service connected disability rating for PTSD with major depression, effective     11 January 2002.  An evaluation of 50 percent was awarded from 31 October 2005.

10.  A review of the available records does not show that the applicant had any medically unfitting disability at the time of her discharge which required physical disability processing.  

11.  Further review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 135-178 (Separation of Enlisted Personnel), paragraph     7-11(C)(1), in effect at the time, provided for the discharge for misconduct when it was determined that the Soldier was unqualified for further military service by reason of abuse of illegal drugs.  This regulation stated, in pertinent part, that abuse of illegal drugs was serious misconduct.  Discharge action normally would be based on commission of a serious offense.  However, relevant facts could mitigate the nature of the offense.  Therefore, a single drug abuse offense could be combined with one or more disciplinary infractions or incidents of other misconduct and processed for discharge for minor disciplinary infractions or a pattern of misconduct, as appropriate.  Second-time drug offenders in any enlisted grade of rank must be processed for discharge after a second offense.

13.  Army Regulation 135-178 also provided that the service of a Soldier discharged for minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, or conviction by civil authority will normally be characterized as under other than honorable conditions.  If warranted by the Soldier’s overall record, the characterization of service of under honorable conditions (general) may be furnished.

14.  Army Regulation 135-178, in pertinent part, states the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when significant negative aspects of the Soldier's conduct or performance outweighs positive aspects of the Soldier's military record.  

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

16.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, 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 VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that her general discharge be upgraded to an honorable discharge or a medical discharge.

2.  Her contentions have been noted.  However, the available records show that her service was not fully honorable.  Her records show that she twice tested positive for cocaine while she was a member of the USAR and in accordance with the applicable regulation, a discharge under other than honorable conditions was normally considered appropriate.

3.  However, her overall record of service was considered at the time of her general discharge and the character of her service appears to be appropriate considering all of the facts of the case.

4.  There is no evidence of record, nor has the applicant submitted sufficient evidence to show that she had a medical condition at the time of her discharge that required her to be processed through medical channel.  Her records do not contain evidence that she was suffering from PTSD prior to her discharge from the USAR.  Therefore, there was no basis for processing her for separation through medical channels.

5.  In order to justify correction of a military record the applicant must show 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. 

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

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 for correction of the records of the individual concerned.




      _______ _   _XXX______   ___
               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)                                         AR20090007182



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ABCMR Record of Proceedings (cont)                                         AR20090007182



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