IN THE CASE OF:	  

		BOARD DATE:  7 January 2014

		DOCKET NUMBER:  AR20130007563 


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, that his rank be restored to E-4, that his bonus debt be remitted/cancelled, and that the narrative reason for his separation be changed to reflect that he was discharged due to medical conditions. 

2.  The applicant states that he served two tours in Iraq and has post-traumatic stress disorder (PTSD).  He tried to seek help in Hawaii to no avail and starting treating himself.  He now has a complete diagnosis and disability rating and feels that it should have been taken care of prior to his discharge and he should have been given a discharge for medical conditions.  His rank should be restored to 
E-4 and his reenlistment bonus debt should be forgiven because he was suffering from PTSD. 

3.  The applicant provides a copy of his Department of Veterans Affairs (VA) Rating Decision.

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 Washington Army National Guard (WAARNG) on 22 October 2003.  He completed his training as a signal support service specialist and deployed to Iraq during the period 18 August 2004 – 8 April 2005.  He was honorably discharged from the WAARNG on 5 February 2006 to enlist in the Regular Army. 

3.  On 6 February 2006 he enlisted in the Regular Army for a period of 3 years and assignment to Hawaii.  He deployed to Iraq during the period 30 July 2006 – 30 September 2007 and reenlisted while in Iraq on 12 July 2007 for a period of 5 years and a selective reenlistment bonus.

4.  On 7 March 2008, he was counseled by his commander regarding his testing positive on three urinalysis tests in three months.  His records show that nonjudicial punishment (NJP) was imposed against him on 21 July 2006 and 
28 January 2008 for the wrongful use of marijuana.

5.  On 7 March 2008, the commander notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct – drug abuse.  He cited as the basis for his recommendation the applicant’s multiple incidents of wrongful use of marijuana, disobeying a lawful order from a superior noncommissioned officer, and being disrespectful toward a noncommissioned officer on two occasions.   

6.  The applicant declined to consult with counsel, waived his rights, and indicated that he was submitting a statement in his own behalf.  However, there is no evidence that he submitted such a statement.

7.  On 17 March 2008, the appropriate authority approved the recommendation for discharge and directed that he be discharged under honorable conditions.

8.  Accordingly, he was discharged under honorable conditions on 9 April 2008 in the pay grade of E-1, under the provisions of Army Regulation 635-200, paragraph 14-12b, due to a pattern of misconduct.  He had served 2 years, 2 months, and 4 days of active service in the Regular Army.

9.  On 23 January 2012, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge citing essentially the same reasons he has cited to this Board.  During the review of his case the analyst determined that one of the urinalyses used in his separation packet was part of the applicant’s Army Substance Abuse Program (ASAP) enrollment and as such constituted limited use in accordance with Army Regulation 600-85 and warranted a characterization of honorable.  Accordingly, the ADRB voted to grant him partial relief by upgrading his discharge to fully honorable and denying his request to change the narrative reason for separation.

10.  The VA Rating Decision provided by the applicant shows that he was granted an 80% service-connected disability rating for PTSD and splints to his legs effective 10 September 2012.

11.  A review of his official records failed to reveal any evidence showing that the applicant could not distinguish right from wrong, that he was unable to perform his duties, or that he was deemed to have any unfitting conditions at the time of his discharge. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Additionally, disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

14.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA rating does not establish error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affects the individual's employability.

15. There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Notwithstanding the actions of the ADRB, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offenses and the lack of evidence showing that his urinalysis was flawed or that he did not use illegal drugs.  This is especially true given that the applicant admitted to using marijuana.

4.  Additionally, there is no evidence to show his conditions rendered him unfit to perform his duties; therefore, there was no basis to process him under the physical disability evaluation system.

5.  The evidence of record shows he was properly discharged by reason of his pattern of misconduct, was properly reduced to the lowest enlisted grade at the time of his discharge, and his bonus is properly being recouped as an unearned debt. 

6.  Accordingly, there appears to be no basis to grant his 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)                                         AR20130007563





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ABCMR Record of Proceedings (cont)                                         AR20130007563



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