IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100024408 


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:

* the reason for her discharge be changed
* her discharge be upgraded to honorable 
* her reentry (RE) code be changed to 1
* her pay grade as corporal (pay grade E4) be reinstated
* that medical disability be awarded for loss of hearing and ADHD (attention deficit hyperactivity disorder)
* she receive a 2/4 year extension on her GI Bill Educational Benefits
* she be waived in a "Green to Gold" Program or be able to serve in the reserve

2.  The applicant states she self medicated with marijuana for the majority of her teenage life.  she struggled with ADHD and had remained undiagnosed until recent by the Department of Veterans Affairs (VA).  While she was assigned in Germany she saw many Soldiers who resided in the barracks participate in illegal use of cocaine by injection, extensive use of alcohol, etc.  She contacted a trusted staff sergeant for guidance and self referred herself for rehabilitation so she could honor her oath.  She was asked to expose other Soldiers who were abusing harder illegal drugs with a promise from the commander that she would not have to fear retribution.  After a change in company commanders she was given more barracks details because of her past attempt to self refer and the exposure of improprieties.  She received out-patient treatment almost a year later but she was consistently withdrawn from the mandatory sessions for field exercises, deployments, or work.  These actions hindered her ability for successful rehabilitation.

3.  The applicant states since her discharge she has continued working in the pharmaceutical industry as a technician and struggled to successfully become educated.  She transferred her credits to obtain a dual Bachelor of Art/Bachelor of Science college degree.  Her education and experiences have contributed to her ability to seek further counseling for her ADHD.

4.  She states she went swimming in Haiti and 2 days later she was hospitalized with chronic otitis media (inflammation or infection of the middle ear).  She was seen by multiple specialists throughout her career and still suffers from severe pain when airborne, itchiness, irritation and difficulty in hearing.

5.  The applicant indicated she was providing medical records with her application; however these records were not with the application when it was received.  She provides:

* DD Form 214 (Certificate of Release or Discharge From Active Duty) with a separation date of 12 October 1996
* DD Form 214 with a separation date of 25 February 1999
* statement from a staff sergeant from her unit in Germany
* a memorandum, dated 3 February 1999, from her defense counsel
* a letter, dated 20 January 1999, from a clinical psychologist
* a memorandum, dated 3 February 1999, from a Alcohol and Drug Abuse Prevention  and Control Program (ADAPCP) counselor

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.  She enlisted in the Regular Army on 23 April 1997 in pay grade E-4 for a period of 3 years with 3 years prior active service in the Regular Army.  She was enlisted in military occupational specialty (MOS) 91M (Hospital Food Service specialist).

3.  On 4 January 1999, she accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between on or about 29 October 1998 and on or about 29 November 1998.  Part of the punishment she received was a reduction to private/pay grade E-2.

4.  A letter, dated 6 January 1999, from an ADAPCP counselor gave a synopsis of rehabilitation activities of the applicant.  

	a.  She was enrolled in the ADAPCP on 3 February 1998 as a command-referral for alcohol-related concerns.  She had participated in four individual and two group counseling sessions.  Two Rehabilitation Team Meetings (RTM) were held on behalf of the Soldier.  Due to her resistance to treatment, field exercises, and deployment she was disenrolled on 13 May 1998 and referred to ADAPCP training; however, she did not show for the two day training.

	b.  She was again referred to ADAPCP on 28 December 1998 as a result of a positive urinalysis test.  A RTM determined that because her motivation for successful rehabilitation was poor, further rehabilitation efforts were unwarranted and due to her lack of potential for military service she should be separated.

5.  The applicant received a mental status examination on 20 January 1999 by a clinical psychologist at the 254th Medical Detachment, Combat Stress Control.  The examiner stated she reported no significant symptoms that would indicate she was suffering from any mental health disorder that would prohibit further administrative action.  She stated she does a lot of drinking and would eventually want to seek help.  The examiner determined she wanted to appear that she was in control but she has a number of personal issues that need to be addressed when she is ready.  The examiner stated she is psychiatrically cleared for administrative actions.

6.  The applicant's commander notified her that he was initiating action to discharge her under the provisions of Chapter 14, paragraph 14-12c of Army Regulation 635-200 (Personnel Separations) for commission of a serious offense.  He stated his reasons for the proposed action were her numerous instances of failure to repair (FTR), disrespect toward a superior commissioned officer, failure to keep sufficient funds in her account, and wrongful use of marijuana.  He was recommending she receive a general discharge, under honorable conditions.  However, the separation authority may direct that the applicant's service be characterized as honorable; general, under honorable conditions; or under other than honorable conditions.

7.  The commander advised the applicant of her right to have her case considered by a board officers (if she had 6 or more years of total active and reserve service or an under other than honorable conditions recommendation is made by the separation authority), to appear in person before a board officers, to submit statements in her own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves her discharge and request her case be presented before a board of officers.  She acknowledged receipt of her notification for discharge and that she had been advised of her right to consult with counsel prior to making any election of her rights.

8.  On 3 February 1999, after having been advised by defense counsel of the basis for her contemplated separation and its effects, the rights available to her, and the effect of a waiver of her rights, she did not make any election of rights and she did not sign the memorandum.

9.  The applicant's commander recommended her for discharge under the provisions of paragraph 14-12c, chapter 14 of Army Regulation 635-200.

10.  On 3 February 1999, the applicant's defense counsel recommended the separation authority disapprove separation action under chapter 14 and reinitiate separation action under the provisions of chapter 9 for ADAPCP failure.

11.  On 12 February 1999, trial counsel recommended the applicant be separated under the provisions of chapter 14 with a general discharge.  Counsel stated first-time drug abusers in pay grade E1 - E4 may be processed for separation under chapter 14 and ADAPCP failures may be processed for separation under chapter 9.  Because the applicant was given a second chance after her initial ADAPCP failure and she ultimately responded by committing a serious offense, abusing an illegal drug, it is more appropriate to process her separation under the provisions of chapter 14.

12.  The appropriate authority approved the recommendation for discharge by reason of misconduct, of commission of a serious offense and directed her service be characterized as general, under honorable conditions.

13.  Her complete service medical records were not available for review.  Her separation physical examination, dated 19 January 1999, shows bilateral hearing loss.  No other possible physical disabilities were noted on this examination.

14.  On 25 February 1999, she was discharged under the provisions of paragraph 14-12c(2) of Army Regulation 635-200.  She completed 1 year, 
10 months, and 3 days of active service that was characterized as under honorable conditions (general).  She was assigned the separation program designator (SPD) code of JKK and an RE code of 4.

15.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade her discharge.  On 30 November 2007, the ADRB reviewed and determined the characterization of her service was too harsh.  The ADRB upgraded the characterization of her service to fully honorable.  However, the ADRB found that the narrative reason for discharge was both proper and equitable.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.   

	a.  Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to Army Drug and Alcohol Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Offenses involving alcohol or drugs may properly be the basis for discharge proceedings under chapter 14.

	b.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Those in pay grades below E-5 may be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator JKK as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as misconduct and that the authority for discharge under this separation program designator is paragraph 14-12c(2) of Army Regulation 635-200.
18.  U.S. Total Army Personnel Command Memorandum Number 93-4, dated 
20 September 1993, states:

*  RE code 1 applies to persons completing their term of active service who are considered qualified to reenter the U.S. Army 

*  RE code 4 applies to persons separated from their last period of service with a non-waivable disqualification.

19.  The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table, dated 20 September 1993, shows that the appropriate RE code for the SPD code of JKK is 4.

20.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice:  

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the nonjudicial punishment process by:

 * evaluating the case to determine whether proceedings under  	Article 15 	should be initiated.
 * determining whether the Soldier committed the offense(s) where 	Article 15 proceedings are initiated and the Soldier does not demand 	trial by court-martial.
 * determining the amount and nature of any punishment, if punishment 	is appropriate.

	b.  Paragraph 3-28 states that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Paragraph 3-2b(2) states when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

	b.  Paragraph 4-9 states medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's commander could have processed her for separation under the provisions of chapter 9 of Army Regulation 635-200 when she was disenrolled from ADAPCP on 13 May 1998 due to her resistance to treatment.  However, he chose to give her a second chance and allowed her to remain in the Army.  

2.  She then committed a serious offense, smoking marijuana. Her commander then processed her for separation under the provisions of chapter 14.  It is clear her commander considered her overall record and any mitigating circumstances in her case in that he recommended a general discharge under honorable conditions where an under other than honorable conditions discharge was normally considered appropriate.

3.  The ADRB upgraded her discharge to honorable.  Therefore, there is no correction for the Board to make concerning the characterization of her service.  

4.  The upgrade approved by the ADRB does not change the reason she was processed for discharged.  She could have been processed under the provisions of chapter 9, but her commander gave her a second chance.  Upon her commission of a serious office, wrongful use of marijuana, the commander processed her for discharge under the provisions of chapter 14.  The reason for separation was appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.  Therefore, the reason and the SPD code JKK assigned at discharge is correct.
5.  According to the SPD/RE Code Cross Reference Table the appropriate RE code for SPD code JKK is 4.  There is insufficient evidence to change the RE code to something other than what is indicated on the SPD/RE Code Cross Reference Table.  Therefore, the RE code of 4 on her DD Form 214 is correct.

6.  The applicant's statements concerning her post service achievements and conduct are noted.  However, good post service conduct does not change the reason she was discharged.

7.  It is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process for the applicant's offense.  Therefore, it is reasonable to conclude the officer considered any mitigating factors and factors raised to cast doubt on the applicant's guilt.  The record establishes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.  The ABCMR does not find the applicant's submissions sufficient to overturn this finding.  Therefore, there is insufficient basis to restore her to pay grade E-4.  

8.  There is no record of the applicant being diagnosed with ADHD while she was in the U.S. Army.  There is no evidence she was unable to perform the duties of her rank and MOS due to hearing loss or ADHD.  Without this determination there would be no cause to refer her to a MEBD or for a determination of unfitness by a PEB.  Therefore, there is no basis for the ABCMR to award a disability for these conditions at the time of her discharge.

9.  The Department of Veterans Affairs (VA) administers the GI Bill educational benefits.  Therefore, the ABCMR has no jurisdiction concerning any extensions of benefits.  The applicant should contact the VA with any questions she has concerning her educational benefits.

10.  The ABCMR does not provide waivers for programs or for enlistment.  Waivers, if needed, would be requested by the applicant at the time she applies for a program or enlistment.

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)                                         AR20100024408



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ABCMR Record of Proceedings (cont)                                         AR20100024408



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