IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110010257 


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 two separate applications, that his separation authority, separation code, reenlistment code, and narrative reason for separation be changed.

2.  The applicant states he was suffering from post-traumatic stress disorder (PTSD) and was self-medicating for his condition.

3.  The applicant provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Record of Service
* Administrative separation board of officers proceedings
* “Medline Plus” website pages
* “Medications:  The New DUI” website pages
* Newspaper article entitled “Crime:  A Sign of PTSD”
* Self-authored letter to the Army Review Boards Agency, dated 20 May 2011

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’s DA Form 2-1 (Personnel Qualification Record – Part II) shows he had prior service in the U.S. Marine Corps (USMC) and that while he was a member of the USMC he served in Vietnam for 12 months from December 1971 through December 1972.  The applicant enlisted in the Regular Army on 4 April 1980, in pay grade E-4.  He was promoted through the ranks to pay grade E-6.  He remained on active duty through reenlistments and extensions. 

3.  The applicant accepted nonjudicial punishment (NJP) on 8 April 1988, for wrongful use of marijuana.

4.  The applicant’s record contains letters of indebtedness showing he had over $10,000.00 worth of debt.  He filed for bankruptcy on 17 June 1988.

5.  On 31 August 1988, the applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – use of illegal drugs and indebtedness, had been initiated.  He acknowledged receipt of the notification and, after consulting with counsel, he elected a personal appearance before an administrative separation board.

6.  On 6 October 1988, the applicant was notified that an administrative separation board was convening to determine whether he should be separated from the Army pursuant to Army Regulation 635-200, chapter 14-12c, due to a positive urinalysis and indebtedness.  He acknowledged receipt of the notification upon its receipt.

7.  The discharge date of his bankruptcy was 12 October 1988. 

8.  The administrative separation board convened on 14 January 1989.  The board proceedings show that the urinalysis was completed in June 1988.  The applicant’s urinalysis was positive.  He accepted NJP and was reduced to pay grade E-5.  He was afforded the opportunity to go to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for treatment and had to make three appointments.  He had to cancel his first appointment due to personal conflicts.  He missed his second appointment completely.  He went to the third appointment and he denied usage of drugs.  In order to be enrolled in ADAPCP you have to acknowledge that you do have a problem.  He denied usage of drugs; therefore, ADAPCP did no enroll him.

9.  During the administrative board proceedings, the licensed clinical psychologist who testified during the board proceedings stated that the applicant was a classic PTSD combat veteran.  However, there was no doubt in his mind, based on his treatment of the applicant, his career was salvageable.  He stated that as far as retention or separation of the applicant goes, there was a major problem in that it was his understanding that the Army did not recognize PTSD for medical disability purposes.  Although he didn’t refer him to the hospital, if there was no other major problems, the hospital’s hands were tied because if they referred him for medical disability, the Army medical disability system would not recognize his diagnosis.  He stated that the Army did not give any medical disability at all for the PTSD diagnosis and that separation under the provisions of Army Regulation 635-200, chapter 5, would require a diagnosis for personality disorder.  He stated that the applicant did not have a personality disorder.  He stated that if the Army regulations were written so that individuals with PTSD could receive disability, he would recommend that the applicant be retained on full duty in outpatient treatment.  The psychologist stated that he did not believe that the applicant consciously ever used marijuana.  However, he believed the applicant got so stressed that it was a possibility that he did on one occasion as an atypical stress reaction.  The Army chemist’s best guess was that the drug was ingested on the 4th, 5th, or 6th of June 1988.

10.  After careful consideration of all the evidence, the board found, by a unanimous vote, use of marijuana as alleged.  The board recommended his discharge from the service for misconduct, with the issuance of an Honorable Discharge Certificate.  

11.  The appropriate authority approved the recommendation on 17 February 1989 and directed the issuance of an Honorable Discharge Certificate.  He was honorably discharged on the date of approval of his recommendation, under the provisions of Army Regulation 635-200, chapter 14 for misconduct – drug abuse. The DD Form 214 he received shows he received a JKK (misconduct – drug abuse) separation program designator (SPD) code and reentry eligibility (RE)     3 and 3C codes.

12.  The applicant submits an article on how crime relates to individuals with PTSD.  He submits a copy of the administrative board proceedings identifying one paragraph in those proceedings, which speaks to the possibility of certain over-the-counter drugs he had been taking being responsible for his positive urinalysis.  In the very next paragraph it is noted that the procedures used do not involve any enzyme process and that the Army lab uses the best kind of screening in the world.  The conclusion was that the three tests of his sample identified marijuana not ibuprophin, so the fact that he took ibuprophin before his urinalysis could not explain the positive urinalysis.  He submits website pages from Medline Plus listing several types of over-the-counter pain medications and their effects.  It also lists the specific website for each of the over-the-counter pain medications.  He submits website pages on “Medication:  The New DUI.”  These pages list list a number of drugs and their uses.

13.  The applicant submits a self-authored statement contending, in effect, that the psychologist states that he did not use drugs, which is what he has been saying all along.  He states that the doctor also stated he was using about 10 different drugs, and Advil was one of the drugs he was taking.  He states the Medline Plus webpages he submits also relate to Tylenol, Aspirin, Aleve, and Motrin and he was taking all of these drugs.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states that prior to discharge or release from active duty, individuals 
will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE-3 and RE-3C codes apply to persons who have a waivable disqualification.  

16.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.

17.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers separated for cause.  The SPD code JKK has a corresponding RE code of 3.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  His supporting documents have been considered.

2.  The available records show that while the psychologist did testify that the applicant was classic PTSD, he was not processed for discharge through medical channels.  The psychologist recommended the applicant remain on active duty for continued treatment as he believed that the applicant’s career was salvageable.  

3.  His records show he had NJP imposed against him after he tested positive for marijuana.  Although he was taking other medications, his records show that the Army determined that his positive results were as a result of actual marijuana use, not as a result of the use of other medications or drugs.

4.  None of the documents he submits shows that he would have tested positive for marijuana as a result of the over-the-counter drugs he was using.  An administrative separation board convened at his request and it was determined that he should be discharged from the Army under the provisions of Army Regulation 635-200, chapter 14, for misconduct – drug abuse.  The psychologist testified he believed the applicant got so stressed that it was a possibility that he did on one occasion use marijuana as an atypical stress reaction.  The narrative reason and authority for separation shown on his DD Form 214 are correct.

5.  The applicant was honorably discharged for misconduct and assigned RE codes 3 and 3C and an SPD code JKK based on his reason for discharge.

6.  He has not shown error or injustice in the actions taken by the Army.  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.




      _______ _   __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)                                         AR20110010257





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ABCMR Record of Proceedings (cont)                                         AR20110010257



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