IN THE CASE OF:	  

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130011471 


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 a medical retirement.

2.  The applicant states while he was at the Warrior Transition Unit (WTU) at Fort Bragg, NC, he was not afforded the opportunity to complete his medical evaluation board (MEB) proceedings in accordance with Army Regulation 635-40 (Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation), paragraph 3.  His disability was the cause of the misconduct for which he was separated.  His proceedings were never forwarded to the general court-martial convening authority (GCMCA) for a determination of the MEB proceedings.

3.  The applicant provides:

* Enlisted Record Brief
* Appreciation letter from the Sergeant Major of the Army
* Fort Bragg Army Substance Abuse Program (ASAP) completion certificate
* Insurance Election and Certificate
* A DA Form 638 (Recommendation for Award) for the Army Commendation Medal and the resulting orders and certificate
* DD Form 2648 (Pre-Separation Counseling Checklist for Active Component Service Members)
* DD Form 93 (Record of Emergency Data)
* SGLV-8286 (Servicemember's Group Life Insurance Election and Certificate)
* Orders Number 209-0273
* Two letters from staff members of the Walter Reed Army Medical Center (WRAMC)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 Regular Army on 7 November 2007 and held military occupational specialty 11B (infantryman).  

3.  On 15 March 2010, the applicant's company commander was notified of the applicant's positive drug testing results.

4.  On 15 March 2010, the applicant's company commander notified the Womack Army Medical Center, Physical Examination Section, Fort Bragg, that the applicant was being processed for separation in accordance with Army Regulation 635-200, paragraph 14-12c.  The company commander also issued a flagging action.

5.  On 8 April 2010, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between 21 and 23 February 2010 and 15 and 18 March 2010.  

6.  A DD Form 2697 (Report of Medical Assessment), dated 14 April 2010, shows he was medically evacuated from Afghanistan as the result of an injury.

7.  A Report of Behavior Health Evaluation, dated 29 April 2010, shows the applicant's behavior was found to be normal.  He was fully alert and fully oriented and his mood and affect were unremarkable.  His thinking process was clear and his thought content was normal.  The examining psychologist diagnosed the applicant with Cognitive Disorder.  He recommended the applicant undergo a follow-up appointment.  He stated that the applicant exhibited symptoms that could lead to a diagnosis that did not meet medical retention standards as defined in Army Regulation 40-501 which would require referral to the PEB for determination of fitness for continued military service.

8.  On 23 June 2010, the applicant's company commander was notified of the applicant's positive drug testing results.

9.  On 25 June 2010, the applicant’s company commander notified the applicant of proposed action to separate him under the provisions of Army Regulation    635-200, paragraph 14-12c, due to the applicant testing positive for marijuana on three occasions on 8 June, 15 March, and 21 February 2010.  He recommended the applicant receive a general discharge and he advised the applicant of his rights.

10.  On 25 June 2010, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

11.  On 15 July 2010, the Commander, Warrior Transition Battalion, Womack Army Medical Center, recommended the applicant's discharge be approved and his service be characterized as general, under honorable conditions.  The applicant's intermediate commander also recommended the same.

12.  On 19 July 2010, the separation authority stated he reviewed the separation packet pertaining to the applicant under the provisions of chapter 14 of Army Regulation 635-200, by reason of commission of a serious offense, and approved the applicant's discharge with a general discharge.  He added that his review was based on the separation packet and any endorsements and statements submitted by or on behalf of the applicant. 

13.  A DA Form 3349 (Physical Profile), dated 24 June 2010, shows he was assigned a temporary profile of 111311 for hearing loss.  The form does not indicate that he did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

14.  He provided copies of completed 2010 DD Forms 2648 and 93 and SGLV-8286; Orders Number 209-0273 reassigning him to be discharged; and two letters, dated 2 and 4 August 2010, respectively, from staff members of the WRAMC.  Both individuals stated the letters were submitted in reconsideration of his Traumatic Servicemember's Group Life Insurance payment due to a loss of his ability to perform his activities of daily living (ADL).  The individuals also stated, in effect:

   a.  The applicant was injured during combat operations in Afghanistan on 17 September 2009 as a result of multiple rocket-propelled grenade blasts.  He was admitted to WRAMC on 20 September 2009.  As a result of the injuries to his brain, he was not independent of his ADLs.  He was discharged from WRAMC on 29 September 2009 with a non-medical attendant.

   b.  Additionally he was found to have peripheral vestibular vision which caused vertigo, nausea, and imbalance.  He underwent aggressive vestibular and gait therapy.  For 7 days he used a rolling walker for gait while in the hospital.  From 28 September to 1 November 2009, he used a single point cane when ambulating on post and in the community while on supervised activities with family or staff.

15.  He was discharged in pay grade E-3 on 12 August 2010, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for Misconduct (Drug Abuse), with a general discharge.  He completed 2 years, 9 months, and 6 days of net active service.  

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-2c(2) - Soldiers are subject to discharge action for commission of a serious offense for the abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 

   b.  Paragraph 14-17g(1) - On receiving a recommendation for separation for misconduct, the separation authority may take action to direct that the case be processed through medical channels, if appropriate.  Such disposition is required if the Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct, and action under the UCMJ is not initiated.  A copy of the signed decision by the GCMCA will be included with the records.

   c.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  The regulation states in:

   a.  Paragraph 3-1 - the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

   b.  Paragraph 3-1a - the objectives of standards is to ensure all Soldiers are physically qualified to perform their duties in a reasonable manner.  Medical retention qualification standards have been established in Army Regulation      40-501 (Standards of Medical Fitness), chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEB. The major objective of these standards is to achieve uniform disposition of cases arising under the law.  These retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army.  The fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.

   c.  Paragraph 4-10 - the MEB is convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40–501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows action was initiated against the applicant to separate him under the provisions of Army Regulation 635-200, paragraph      14-12c, after he tested positive for marijuana on 3 occasions.  He acknowledged the proposed separation action and elected not to submit a statement in his own behalf.  The separation authority approved his discharge and he was discharged accordingly on 12 August 2010.

2.  There is no evidence and he did not provide sufficient evidence showing he was undergoing MEB proceedings and/or he had failed to meet medical retention standards at the time.  There is also no evidence his medical condition was the contributing cause of his misconduct.  

3.  When Soldiers are undergoing administrative separation for misconduct, the separation authority must decide whether to proceed with the disability process or administrative separation.  The separation authority in this case stated that he reviewed the applicant's separation packet and the evidence presented.  It is important to note the fact that the separation authority was aware of the applicant's circumstances and conditions.  He was in the best position to determine that the applicant's medical condition did not contribute substantially to his misconduct.

4.  It appears, after a careful consideration, the separation authority ordered an administrative separation.  It appears the separation authority determined his medical condition was not the direct or substantial contributing cause of the conduct that led to the recommendation of the administrative separation board.  It also appears the separation authority weighed the medical evidence against the other evidence presented and determined that the preponderance of the evidence warranted further administrative separation processing.  Based on this determination, his discharge was approved.  The applicant provides insufficient evidence to show his misconduct was the result of any medical condition he had.

5.  Disability compensation is not an automatic 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.  Here, the applicant's active duty service was primarily interrupted by his misconduct, not by any medical conditions.  In addition, there is no evidence available that shows he had a permanent physical profile for any medical condition.

6.  The governing regulations stated that the separation authority may take action to direct processing through medical channels if the Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct and action under the UCMJ is not initiated, which in his case, he received punishment under the UCMJ for the misconduct.  Had action been directed to process him through medical channels he would have undergone an MEB/PEB before a determination of medical discharge or disability could be made.  

7.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to a medical retirement.


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)                                         AR20130011471



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ABCMR Record of Proceedings (cont)                                         AR20130011471


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