IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100023731 


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, in effect, an upgrade of his under other than honorable conditions discharge to a general or an honorable discharge and a change to his pay grade.

2.  The applicant states he was discharged under other than honorable conditions as a result of being absent without leave (AWOL).  He states there were compelling circumstances that warranted his prolonged absence; therefore, a bar to veterans' benefits and entitlements should not apply.

   a.  He states the reasons for an individual going AWOL should be evaluated in terms of the person's age, cultural background, educational level, maturity, and how the situation appeared to the person when he or she went AWOL.  Hardship incurred from overseas service and service-connected injuries should also be considered.

   b.  On 9 July 1985, he sustained a quadriceps muscle tear and was issued a physical profile until 9 April 1986.  He was given morphine for pain for a 30-day period and he was then prescribed ibuprofen.

		(1)  The morphine caused confusion and changed his character.

		(2)  He states studies show morphine taken for several days will create an addiction and the U.S. Army effectively created an addict.  In addition, ibuprofen has been shown to give false positive test readings for the THC agent in marijuana.
		(3)  He adds a couple of months after he was injured, he tested positive for THC on a urinalysis test, along with approximately 75 other service members.  He subsequently requested leave, but was denied.  On 7 March 1986, he received nonjudicial punishment (NJP) for using marijuana.

		(4)  He acknowledges that he was drinking a lot at the time, but he could not recall any recent use of marijuana.  He later learned of the studies linking ibuprofen to false positive readings for THC.

		(5)  He states he was not offered treatment for substance abuse and cites an example when a Caucasian noncommissioned officer (NCO) received treatment for substance/alcohol abuse, while he [a non-Caucasian] did not.  He adds this same NCO took over his duty position because of the applicant's ruptured quadriceps.

   c.  On 14 March 1986, he underwent a medical examination and he was found qualified for separation.  His family was returned to the United States and he relocated to the barracks awaiting separation orders.

   d.  He went AWOL for a period of 28 days while awaiting orders to return to the United States.  On 13 May 1986, he received NJP for AWOL.

   e.  He questions:

* Why he was not offered treatment for substance abuse?
* Why findings on his separation medical examination were ignored?
* Why he was not granted a medical separation based on his ruptured quadriceps?
* Why he was mistreated by the U.S. Army?

   f.  He notes he is a recovering addict and will live with this the rest of his life.

3.  The applicant provides copies of his entrance and separation medical examination documents and four medical consultation records.

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.  The applicant enlisted in the Regular Army (RA) on 19 July 1978.  At the time the applicant was 18 years of age.  Upon completion of training he was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  He reenlisted in the RA on 4 August 1980 for a period of 3 years and he served overseas in Germany from 26 July 1980 to 26 January 1983.

4.  He reenlisted in the RA on 26 May 1983 for a period of 6 years.  He was promoted to specialist five (SP5)/E-5 on 3 August 1982.

5.  On 28 October 1983, the applicant received NJP under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using some amount of marijuana between 7 August and 17 August 1983, and on 16 August 1983 for possessing less than 30 grams of a controlled substance (marijuana).  His punishment was a reduction to specialist four (SP4)/E-4, forfeiture of $250.00 pay per month for two months, 45 days of extra duty, and 45 days of restriction (suspended until
15 April 1984).  The applicant did not appeal the NJP.

6.  The applicant was reassigned to Germany on 24 January 1984.  He was promoted to sergeant (SGT)/E-5 on 1 May 1985.

7.  A DA Form 3349 (Physical Profile), dated 16 October 1985, shows the applicant was issued a temporary profile for a ruptured left thigh muscle.  The profile expired on 16 December 1985.

8.  On 7 March 1986, the applicant received NJP under Article 15, UCMJ, for wrongfully using some amount of marijuana between 25 August and
5 September 1985.  His punishment was a reduction to pay grade E-4, forfeiture of $395.00 pay per month for two months, and 30 days of extra duty.  The applicant did not appeal the NJP.

9.  On 17 March 1986, the applicant's company commander recommended the applicant be barred from reenlistment.  The applicant elected not to submit a statement in his own behalf.  The battalion commander approved the bar to reenlistment and directed the applicant be counseled on the implications of the action and his right to appeal.
10.  On 13 May 1986, the applicant received NJP under Article 15, UCMJ, for being AWOL from 3 April to 1 May 1986.  His punishment was a reduction to pay grade E-1, forfeiture of $140.00 pay per month for two months (suspended for 90 days), and 30 days of extra duty.  The applicant did not appeal the NJP.

11.  The applicant's administrative separation packet is not contained in the available records.

12.  Headquarters, Boeblingen Composite Team, 198th Personnel Service Company, 38th Personnel and Administration Battalion, Orders 110-9, dated
22 May 1986, reassigned the applicant to the U.S. Army Separation Transfer Point, Fort Dix, NJ, for discharge on 27 May 1986.

13.  The applicant was discharged on 27 May 1986 in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for misconduct - abuse of illegal drugs, with an under other than honorable conditions discharge.  He had completed 7 years, 9 months, and
11 days of net active service.

14.  On 9 June 1997, the applicant applied to the Army Discharge Review Board (ADRB) requesting a discharge upgrade and a change to his narrative reason for discharge.  On 25 June 1997, the ADRB heard testimony at a formal hearing.  After consideration of the applicant's military records and all other available evidence, the ADRB voted to change the narrative reason on the applicant's
DD Form 214 to misconduct.  The ADRB found the applicant's discharge was appropriate because of the quality of his service, and his request for recharacterization of his discharge was rejected.  Accordingly, the ADRB hearing resulting in the voiding of the applicant's original DD Form 214 (Certificate of Release or Discharge from Active Duty) and issuing him a new DD Form 214 to show his narrative reason for as "misconduct."

15.  The newly-issued DD Form 214 shows he was discharged on 27 May 1986 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) with an under other than honorable conditions.  His narrative reason for separation shows the entry "misconduct.

16.  In support of his application, the applicant provides.

   a.  A Standard Form (SF) 93 (Report of Medical History) and SF 88 (Report of Medical Examination), both dated 27 April 1978, that were prepared for the purpose of the applicant's entrance medical examination.

		(1)  The applicant denied any significant medical history.  He indicated that he was in good health and not taking any medications.

		(2)  The doctor found the applicant medically qualified for military service.

	b.  The reverse side of a DA Form 5181-R (Record of Acute Medical Care) and two SFs 513 (Consultation Sheets), each prepared by Orthopedics and Physical Therapy officials on 9 July 1985, respectively.  These documents show the applicant had a history of a muscle strain since September 1984.  He subsequently sustained an injury to his left quadriceps in March 1985 and he was being seen for an apparent left quadriceps herniation.  There is no indication the applicant was prescribed any medication for his medical condition.

	c.  An SF 513, dated 16 October 1985, prepared by Orthopedics officials that show the applicant complained of pain and stiffness in his left leg posterior muscle group.  He was referred for a physical therapy consultation for quadriceps strengthening.  There is no indication the applicant was prescribed medication for his medical condition.

	d.  An SF 93 and SF 88, both dated 14 March 1986, was prepared for the purpose of the applicant's separation medical examination.

		(1)  The applicant indicated he had been treated for ruptured muscles in his left leg and noted limitations related to the leg injury.  He did not note the use of any medications.

		(2)  The doctor noted that the injury occurred in October 1985, there was a complete work-up by orthopedics for the applicant's partial rupture to his left quadriceps, and he had received treatment in the form of physical therapy.

	(3)  The doctor found the applicant medically qualified for separation.

17.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense (one for which a punitive discharge is warranted and authorized), and convictions by civil authorities.  Action will be taken to separate a member for 


misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

	b.  Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the narrative reason for his discharge should be changed and his under other than honorable conditions discharge should be upgraded because he was prescribed morphine, which made him an addict; he was then prescribed ibuprofen, which produced a false positive reading for THC; his age, background, maturity, and educational level were factors that led to him going AWOL; and there were compelling circumstances that warranted his prolonged unauthorized absence.

2.  The applicant's contention that his age, background, maturity, educational level, and compelling circumstances were contributory factors to him going AWOL was considered.  Records show the applicant demonstrated the capacity 


for service by the completion of training, he was promoted through the ranks and attained the grade of E-5 twice, and he completed an overseas tour of duty in Germany.  Thus, the evidence does not support his contention that he was any less capable than other Soldiers of similar age, background, and education level who successfully completed their military service.  In addition, the applicant provides no evidence of compelling circumstances regarding his reason(s) for going AWOL.  Furthermore, AWOL was probably not the sole reason for either the separation or the characterization of the discharge.  Thus, the applicant's contentions are not sufficiently mitigating to warrant relief.

3.  The anecdotal evidence the applicant provides regarding studies he has learned of linking ibuprofen to false positive readings for THC is noted.  However, he provides no credible evidence in support of his contention.  Moreover, it is also noted the applicant had previously received NJP (two years earlier, in 1983) for wrongfully using marijuana where ibuprofen could not have been an issue.

4.  Records show the applicant sustained an injury to his left quadriceps in March 1985, he received medical treatment/physical therapy, and was issued a temporary profile with an expiration date of 16 December 1985.

	a.  There is no evidence the applicant was prescribed morphine for his medical condition.

	b.  There is no evidence the applicant was found medically unfit for military service.

	c.  On 14 March 1986, upon completion of the applicant's separation medical examination, the examining doctor found the applicant qualified for separation.

	d.  Thus, there is no basis to support the applicant's contention that the narrative reason of his discharge should be changed to show he was medically discharged.

5.  Absent evidence to the contrary, it is presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Therefore, the type of discharge directed and the reason therefore, as corrected by the ADRB, were appropriate considering the facts of the case.

6.  Records show the applicant received NJP on two separate occasions for wrongfully using marijuana.  He then received NJP for being AWOL from 3 April to 1 May 1986 and he was reduced to pay grade E-1.  Thus, the applicant's 


service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general or an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general or an honorable discharge.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans/medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

8.  In view of all of the foregoing, there is no basis for granting the applicant's requested relief.

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.



      ____________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)                                         AR20100023731



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ABCMR Record of Proceedings (cont)                                         AR20100023731



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