BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110004794 


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 makes his request through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previously denied request that his bad conduct discharge be upgraded to a general under honorable conditions discharge.

2.  Counsel states:

* the applicant had a substance abuse problem 
* the applicant was not provided with treatment
* the substance abuse problem was escalated by the undiagnosed Post Traumatic Stress Disorder (PTSD) and the main contributing factor to the applicant's behavioral issues

3.  Counsel provides:

* a four-page brief
* an affidavit 
* a VA Form 21-22a (Appointment of Individual as Claimant's Representative)




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 AR20090015988, on 23 February 2010.

2.  The applicant enlisted in the Regular Army on 24 January 2002.  He completed basic combat and advanced individual training and was awarded military occupational specialty 92G (Food Service Operations Specialist).  The highest rank he attained while serving on active duty was specialist/E-4.

3.  There is no evidence in the applicant's record showing he was prohibited from  participating in substance abuse rehabilitation programs.  

4.  There is no evidence in the applicant's medical record showing that he was diagnosed with PTSD prior to 29 October 2007.  

5.  Medical records show that, on 29 October 2007, the applicant was hospitalized for one month in a German psychiatric unit.  The hospitalization was a result of a suicide gesture made after court-martial charges were preferred against him. 

6.  On 1 February 2008, the applicant received a general court-martial.  He pled guilty to using, possessing, and distributing 400 grams of marijuana, assaulting two police officers, and attempting to use methamphetamines.  

7.  Counsel states the applicant:

* enrolled in a substance abuse program in 2002 and not allowed to finish 
* was ordered to participate in a substance abuse program but only attend 2-3 meetings due to deployment 
* experienced an incident which caused PTSD in 2003 on deployment
* had undiagnosed PTSD 
* tested positive for marijuana on a urinalysis prior to deploying to Afghanistan in 2005
* was convicted by court-martial while in Afghanistan
* was not provided the mandatory treatment for substance abuse in Afghanistan
* was not provided the mandatory treatment for substance abuse after redeployment
* was assigned to Germany in January 2006 
* attended 2-3 [substance abuse] meetings and then unable to receive substance abuse treatment due to field exercise
* received charges, on 13 August 2006, for the use of marijuana
* was sent to a correctional facility without receiving treatment
* used drugs and alcohol to cope with PTSD
* should have been protected under the Army's limited use policy 

8.  Army Regulation 600-85 (The Army Substance Abuse Program) states legal and administrative actions against a Soldier on deployment orders with a confirmed positive drug test may be suspended at the discretion of the separation authority until the Soldier’s unit redeploys from the theater of combat operations.  The unit commander in consultation with the Army Substance Abuse Program (ASAP) counseling staff will determine the deployment availability of Soldiers enrolled in the ASAP. The same standards used for other medical treatment will be applied. Ordinarily, Soldiers enrolled in the ASAP who are receiving Level I services are deployable and Soldiers participating in, or awaiting admittance to, an ASAP partial inpatient care program are deployable.

9.  According to Army Regulation 600-85, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), limited use policy prohibits the use of evidence against a soldier in actions under the Uniform Code of Military Justice or on the issue of characterization of service in separation proceedings concerning admissions and other information concerning drug or alcohol abuse occurring prior to the date of initial referral to ADAPCP provided voluntarily by a soldier as part of his or her initial entry into ADAPCP or admissions made by a soldier enrolled in ADAPCP to a physician or ADAPCP counselor during a scheduled interview concerning drug or alcohol abuse occurring prior to the date of initial referral to ADAPCP. The objectives of the Limited Use Policy are to facilitate the identification of Soldiers, who abuse alcohol and other drugs by encouraging identification through self-referral to facilitate the rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention. When applied properly, the Limited Use Policy does not conflict with the Army’s mission or standards of discipline. It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action.

10.  Army Regulation 635-200 (Enlisted Separations), 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.


DISCUSSION AND CONCLUSIONS:

1.  Counsel's request that the applicant's discharge be upgraded has been carefully considered and determined to lack merit.

2.  There is no evidence in the applicant's record, nor has counsel provided evidence to show the applicant was prohibited from participating in substance abuse rehabilitation programs.  

3.  There is no evidence in the applicant's record, nor has counsel provided evidence to show that the applicant's substance abuse problems and behavioral issues were a result of undiagnosed PTSD.  

4.  Based on the forgoing, there insufficient evidence to grant counsels 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 to amend the decision of the ABCMR set forth in Docket Number AR20090015988, dated 23 February 2010.




      _______ _ 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)                                         AR20110004794



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004794



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1