IN THE CASE OF:	   

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130003476 


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 upgrade of his general discharge to honorable and change of his narrative reason for separation from misconduct to medical.

2.  The applicant states his discharge was inequitable because he was and still is struggling with problems caused by his deployment.

3.  The applicant provides:

* Certificate of completion, dated 6 January 2012
* Memorandum from his immediate commander, dated 23 January 2012
* DA Form 3822 (Report of Mental Status Evaluation), dated 1 March 2012
* Enlisted Record Brief (ERB), dated 25 September 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  With respect to the issue of upgrading his characterization of service, the applicant's request is premature.

	a.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), section II, paragraph 2-5, states that the Board will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  In the applicant's case, his request for an 

upgrade of his characterization of service lies within the purview of the Army Discharge Review Board (ADRB) and falls within that board's 15-year statute of limitations.

	b.  The portion of his request that pertains to the characterization of his service has been forwarded to the ADRB for consideration.  The ADRB will notify the applicant by separate correspondence of its findings.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

2.  The applicant enlisted in the Regular Army on 11 November 2009 and he held military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  The ERB he provided shows he was assigned to the 595th Engineer/Sapper Company, White Sands Missile Range, NM on 17 March 2010.  His ERB also shows he served in Afghanistan from 15 April 2010 to 15 April 2011.

4.  His record contains 25 negative DA Forms 4856 (Developmental Counseling Forms) during the period 20 April 2010 to 30 September 2011.  He was counseled:

* on 10 separate occasions for failing to go at the time prescribed to his appointed place of duty and/or missing formation
* for losing his military identification card and meal card
* on two occasions for failing to obey an order or regulation
* for violating the unit/installation standing operating procedure by having a female in his room during duty hours
* for missing an appointment
* for missing a urinalysis exam for an Army Substance Abuse Program (ASAP) meeting
* for missing movement
* on two occasions for having a bad attitude and not separating his personal problems from his work
* on two occasions for disobeying a lawful order by leaving post while on restriction
* on four occasions for disobeying a lawful order from a noncommissioned officer (NCO) and/or insubordinate conduct toward an NCO
* for throwing an object at an NCO's truck after being told to report to formation, making numerous outbursts in formation, and displaying disrespectful body language and rolling his eyes in formation
* for damaging U.S. Military property, assault, and drunkenness

5.  On 15 August 2011, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from his commanding officer on 28 July 2011 by leaving post while on restriction.

6.  On 23 August 2011, he received his first mental status evaluation based on a proposed separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c (Misconduct- Commission of a serious offense).  The examining medical official indicated that the applicant had no obvious cognitive impairments, his behavior was cooperative, his perceptions normal, he was unlikely to be impulsive, he was not dangerous, he could understand and participate in administrative proceedings, could perceive right and wrong, met medical retention standards, did not require a Medical Evaluation Board (MEB), and had an adjustment disorder.  The medical official also indicated the applicant had been screened for and tested positive for post-traumatic stress disorder (PTSD) with a screening score of 55 and mild traumatic brain injury (TBI).

7.  On 2 September 2011, his urine specimen tested positive for cannabis/ tetrahydrocannabinol (THC).

8.  His record contains a DD Form 2807-1 (Report of Medical History), dated 3 October 2011, wherein he indicated the purpose of the examination was for a "chapter."  He also indicated he had:

* numbness or tingling of his right hand on all his fingers
* poor health and cited PTSD as the reason
* dizziness that occurred 2 times a week
* nervous trouble (anxiety) with everyday activities and he was taking Celexa for anxiety symptoms
* frequent trouble sleeping/maintaining sleep; he only slept for three or less hours a night and he was taking Trazadone and Seroquel for sleep
* received counseling for mental health and TBI; he had been recently hospitalized and had seen social workers and a psychiatrist in the past
* depression or excessive worry for which he was taking Celexa for symptoms and seeing a doctor on a walk-in basis

9.  His record contains six DA Forms 4187 (Personnel Action) that show he was absent without leave (AWOL) from:

* 14 October 2011 - 12 November 2011
* 30 May 2012 - 31 May 2012 
* 6 June 2012 - 8 June 2012 

10.  On 2 December 2011, his company commander issued a memorandum requesting the applicant be enrolled in inpatient treatment at the Eisenhower Army Medical Center Substance Abuse Treatment Facility, Fort Gordon, GA because he had been diagnosed with a poly-substance dependence.

11.  He provided a certificate issued by Dwight D. Eisenhower Army Medical Center, Residential Therapy Center, Fort Gordon, showing he successfully completed the requirements for Intensive Inpatient Alcohol and Drug Rehabilitation Treatment Facility on 6 February 2012.

12.  On 1 March 2012, he received a second mental status evaluation based on a proposed separation under the provisions of Army Regulation 655-200, chapter 14-12 (Misconduct).  The examining medical official indicated he had no obvious cognitive impairments, his behavior was manipulative, his perceptions normal, he was occasionally impulsive, he was not dangerous, he could understand and participate in administrative proceedings, he could perceive right and wrong, he met medical retention standards and did not require an MEB, and he had an adjustment disorder.  The medical official also indicated he had been screened and tested positive for PTSD with a screening score of 61 and mild TBI.  Further, his poly-substance dependence was reported to have been in early remission and he had an Integrated Disability Evaluation System (IDES) referral for an MEB pending due to his "S-3" profile for chronic PTSD.

13.  His record contains a DA Form 3349 (Physical Profile), dated 11 May 2012, that shows he had a temporary "S-3" profile.  "S" stands for "Psychiatric.”  This factor concerns personality, emotional stability, and psychiatric diseases.  A Soldier with an "S-3" is considered worldwide qualified and the diagnosis or treatment of the Soldier results in a medium risk due to the potential impairment of duty functions, risks to the mission, or ability to maintain a security clearance.

14.  On 13 June 2012, his was issued a new physical profile showing he had a temporary:

	a.  "P-3" profile.  The "P" stands for "Physical condition."  A "P-3" indicates that significant defect(s) or disease(s) are under good control and the Soldier is capable of all basic work commensurate with his/her grade and position.

	b.  "U-3" profile.  The "U" stands for "Upper extremities."  A "U-3" indicates that there are defect(s) causing moderate interference with function, yet the Soldier is capable of strong effort for short periods and is capable of all basic work commensurate with grade and position.

	c.  "L-3" profile.  The "L" stands for "Lower extremities."  A "L-3" indicates a defect(s) causing moderate interference with function, yet the Soldier is capable of strong effort for short periods and capable of all basic work commensurate with grade and position.

	d.  "S-3" profile.  This was explained in paragraph 14.

15.  On 20 June 2012, he received a third mental status evaluation based on a hospital discharge from the psychiatric ward.  The examining medical official (a behavior health provider) indicated that the applicant had no obvious cognitive impairments, his behavior was cooperative, his perceptions normal, he was occasionally impulsive, he was not dangerous, he could understand and participate in administrative proceedings, he could perceive right and wrong, and he had an adjustment disorder with distance in emotion and conduct.  He was also diagnosed with a poly-substance abuse dependency (cocaine, cannabis, and opiates analogsheroine) and a borderline personality disorder with antisocial personality traits.  The medical official further indicated he had a temporary "S-3" profile, and he been screened for and tested negative for PTSD and mild TBI.  The medical official further indicated he:

* had a condition likely to impair his judgment or reliability to protect classified information
* manifested a long-standing, chronic pattern of difficulty adjusting
* had been screened for PTSD and TBI, these conditions were either not present or did not meet the Army Regulation 40-501 (Standards of Medical Fitness) criteria for an MEB
* had been screened for and met the criteria for a drug dependence to (cocaine, cannabis, and opiates analogsheroin) 

16.  On 20 July 2012, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) for wrongfully using marijuana, three 

instances of AWOL, and failing to report on divers occasions.  His commander indicated that he intended to recommend an under other than honorable conditions characterization of service.  The applicant acknowledged receipt of the commander's intent to separate him and he was advised of the basis for the contemplated separation action, the type of discharge he could receive, and of the procedures/rights available to him.

17.  His record contains a DD Form 2808 (Report of Medical Examination), dated 7 August 2012, wherein he indicated the purpose of the examination was for a "chapter."  The examining physician indicated the applicant had been diagnosed with PTSD and Hepatitis C (HEP C), both disqualifying conditions.  Additionally, the physician stated the "Soldier is not qualified for service.  [The] Soldier has a P3 [permanent level 3] profile for PTSD and is in [the] MEB process.  [The] Soldier was being treated by infectious disease for chronic HEP C.  [The] patient's treatment was discontinued due to noncompliance with therapy/
appointments."

18.  On 10 August 2012, he consulted with legal counsel and he was advised of the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He requested counsel and a personal appearance before an administrative separation board.  However, he agreed to waive his request to an administrative separation board if he was granted an under honorable conditions (general) characterization of service.

19.  On 13 August 2012, his immediate commander formally initiated separation action against him under the provisions of Army Regulation 635-200,
chapter 14, paragraph 14-12c.

20.  On 14 August 2012, the battalion commander recommended approval with an under other than honorable conditions characterization of service.

21.  On 6 September 2012, the Garrison commander recommended approval with an under honorable conditions (general) characterization of service.

22.  On 14 September 2012, the Deputy Staff Judge Advocate reviewed the separation packet and found it legally sufficient.

23.  On 19 September 2012, the separation authority indicated he had reviewed the applicant's MEB packet (not present in the record) and determined that the rehabilitative transfer requirements in accordance with Army Regulation 635-200 were completed prior to initiation of the separation packet.  The separation authority directed the applicant be processed for administrative separation for misconduct and discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) with a general discharge.

24.  On 4 October 2012, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of "Misconduct (Drug Abuse)" with a general discharge.  He completed 2 years, 9 months, and 24 days of creditable active service, that included 1 year and 1 day of foreign service.  Additionally, he had 31 days of lost time.

25.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  It states in:

	a.  Paragraph 1-33 that except in separation actions under chapter 10 (for the good of the service - in lieu of trial by court-martial) and as provided in paragraph 1–33b of this regulation, disposition through medical channels takes precedence over administrative separation processing.

	b.  Paragraph 1-33b that when the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 14 does not meet the medical fitness standards for retention, the MTF commander will refer the Soldier to an MEB in accordance with Army Regulation 40–400 (Patient Administration). The administrative separation proceedings will continue; however, the final action by the separation authority will not be taken pending the results of the MEB.

	c.  Paragraph 1-33b(1) that if the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of Army Regulation 635–40 (Physical Evaluation for Retention, Retirement, or Separation), the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court-Martial Convening Authority (GCMCA) and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated, and one of the following has been determined:

		(1)  Paragraph 1-33b(1)(a) states the Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.

		(2)  Paragraph 1-33b(1)(b) states that other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.

	d.  Paragraph 1-33b(3)(c) that disability processing is inappropriate if the conditions in paragraphs 1-33b(1)(a) and 1-33b(1)(b) do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent under paragraph 14-12c.

26.  Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  It states in:

	a.  Paragraph 14-2 that action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed and rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record).  The provisions of paragraph 1–33 of this regulation must have been complied with, if applicable.

	b.  Paragraph 14-3 that 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.

	c.  Paragraph 14-12 that Soldiers are subject to action per this section for the commission of a serious offense.  A separation for the commission of a serious military or civil offense is warranted if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.  Paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct.  The separation reason in all separations authorized by this paragraph will be "misconduct-abuse of illegal drugs."

DISCUSSION AND CONCLUSIONS:

1.  The applicant received three mental status evaluations.  The first two indicated he had PTSD, mild TBI, and a poly-substance drug dependency.  However, one of the medical officials stated the applicant was extremely manipulative.

2.  On 20 June 2012, he received his third and final mental status evaluation.  This evaluation is believed to be the most valid evaluation as it was conducted upon his hospital discharge from the psychiatric ward.  The examining medical official (a behavioral medical provider) stated that the applicant had no obvious cognitive impairments and diagnosed him with a poly-substance abuse dependency for cocaine, cannabis, and opiates analogsheroin.  The medical official further stated the applicant had been rescreened for PTSD and TBI and that these conditions were either not present or did not meet the criteria for an MEB.  As such, these conditions could not have contributed to his behavior or misconduct.

3.  The evidence of record shows that the separation authority (the GCMCA) viewed all medical records including an MEB packet and determined that the rehabilitative transfer requirements were completed prior to initiation of the separation packet.  After weighing the available records the GCMCA approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for "misconduct-abuse of illegal drugs."

4.  Army regulations clearly state that medical disability processing is inappropriate if a Soldier has been medically diagnosed as a drug dependent.  As such, the applicant was appropriately discharged in accordance with Army Regulation 635-200, paragraph 14-12c(2).  Further, the reason for his separation (misconduct) was not related to any medical conditions he had been diagnosed with and there were no other compelling reasons for the GCMCA to proceed with PDES processing.  The GCMCA was aware of the requirements of Army Regulation 635-200 and acted accordingly in that:

* the nature of the applicant's misconduct (drugs and AWOL) had no relation to the medical conditions he claims
* he presented no compelling evidence that other circumstances warranted disability processing over administrative separation

5.  The applicant failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability.

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130003476



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ABCMR Record of Proceedings (cont)                                         AR20130003476



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