IN THE CASE OF: 

		BOARD DATE:	    20 May 2014 

		DOCKET NUMBER:  AR20130014085 


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 an upgrade of his general discharge (GD) to honorable and a change of the reason for discharge to "Secretarial Plenary Authority."

2.  The applicant, in effect, defers his comments and contentions to his counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's discharge be upgraded to honorable and his reason for discharge be changed to "Secretarial Plenary Authority."

2.  Counsel states -

* the Army failed to follow proper notification procedures thereby denying the applicant his due process rights to a fair and impartial administrative separation proceeding
* his discharge was inequitable based on his record of combat action
* the Army failed to properly diagnose, treat, and take into account his post-traumatic stress disorder (PTSD) as it related to his "self medicating" with cocaine
* the Army Discharge Review Board's (ADRB’s) decision was a step backward and reinforces the old stigmas that the Army would rather ignore mental health needs of its Soldiers than provide them the help and treatment they need
* because the applicant was released from the Laurel Ridge treatment program before being fully rehabilitated he relapsed and turned to illegal drug usage to "feel normal" 
* the applicant's awards include the Army Commendation Medal, Army Commendation Medal with "V," Army Achievement Medal, Iraq Campaign Medal with one bronze service star, Army Service Ribbon, Overseas Service Ribbon, Combat Action Badge, and the Driver and Mechanic Badge with Drive "W" Clasp

3.  Counsel provides copies of -

* a personal statement from the applicant 
* an ADRB Brief with attachments
* 11 May 2009 Laurel Ridge Treatment/Discharge Instructions
* service medical records
* 11 award citations, certificates, and/or award recommendations
* a 4 April 2013 letter of support from the applicant's former unit commander

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 May 2006, completed training, and was awarded military occupational specialty 13B (Cannon Crewmember).

2.  He served in Iraq from 5 November 2007 through 9 January 2009.

3.  On 30 March 2009, the applicant was referred to Darnall Army Medical Center, Fort Hood, TX for a psychiatric consultation by the Alcohol and Drug Abuse Prevention and Control Program, currently known as the Army Substance Abuse Program (ASAP).  The examining psychologist noted a history of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for a positive urinalysis.  The applicant was referred for drug and alcohol detoxification and a follow-up evaluation for PTSD.

4.  The applicant was placed in treatment at the Laurel Ridge Treatment Facility, San Antonio, TX for detoxification and treatment for alcohol and cocaine dependency and evaluation and treatment for PTSD.  The available records consist solely of the 12 May 2009 discharge summary and do not clarify who directed his assessment nor do they provide the date of admission.  In addition to being released with eight medications he was directed to attend 90 Alcohol and/or Narcotics Anonymous meeting in 90 days with a follow-up clinical session at the end of that period. 
5.  The service medical records indicate that following his return to his unit his supervisor took his medication away from him; the reason for this action was unknown.  When his medication wore off his symptoms returned.  With the return of the applicant's symptoms, he consulted with a psychiatrist resulting in all of his medications being returned to him.  Upon reusing the medication, the applicant experienced problems staying awake and some of his medications were discontinued.  He was referred for additional evaluation for PTSD and medication problems.

6.  The applicant was absent without leave (AWOL) on four occasions, twice before and twice after his hospitalization.  What, if any, disciplinary actions were taken related to these periods of AWOL is not in the available evidence.  

7.  On 17 June 2009, the applicant tested positive for cocaine use.

8.  On 12 August 2009, his unit commander notified him of the initiation of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  The basis for the proposed action was the applicant's positive test for cocaine on 17 June 2009. 

9.  The intermediate commander concurred with the separation recommendation and noted that the applicant went AWOL whenever they were prepared to execute an Article 15 for the drug offenses.

10.  On 19 August 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.

11.  On 21 August 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

12.  On 28 August 2009, the applicant was discharged under Army Regulation 635-200, paragraph 14-12c(2) with a GD.  He had 3 years, 3 months, and 3 days of creditable service with four periods of lost time totaling 54 days.  His reason for discharge is listed as misconduct (drug abuse).  His awards include the Army Commendation Medal (2nd Award) with "V" Device, Army Achievement Medal, Iraq Campaign Medal with one bronze service star, and Combat Action Badge.

13.  On 23 August 2012, the ADRB denied the applicant's request for an upgrade of the character of his discharge and a change of the reason for discharge.

14.  Army Regulation 600-85 (ASAP) provides comprehensive alcohol and drug abuse prevention and control policies, procedures, and responsibilities for Soldiers of all components, Army civilian corps members, and other personnel eligible for ASAP services.  It states:

	a.  Alcohol and drug abuse by Soldiers and civilian corps members can seriously damage their physical and behavioral health, jeopardize their safety and the safety of those around them, and can lead to criminal and administrative disciplinary actions.  Alcohol and drug abuse is detrimental to a unit’s operational readiness and command climate and is inconsistent with Army Values and the Warrior Ethos.  The Army strives to be free of all effects of alcohol and drug abuse.  Abuse of alcohol or the use of illicit drugs by both military and civilian personnel is inconsistent with Army Values, the Warrior Ethos, and the standards of performance, discipline, and readiness necessary to accomplish the Army’s mission.

	b.  Separation initiation authorities, in accordance with Army Regulation 
635-200 and Army Regulation 600-8-24, retain their authority to make personnel decisions except that commanders will process all Soldiers identified as illegal drug abusers, all Soldiers involved in two serious incidents of alcohol-related misconduct within 12 months, all Soldiers involved in illegal trafficking, distribution, possession, use, or sale of illegal drugs or who tested positive for illegal drugs a second time during their career.

   c.  Soldiers diagnosed by a physician as being drug dependent will be detoxified and then processed for administrative separation in accordance with appropriate enlisted or officer separation regulations, and be considered for disciplinary action under the Uniform Code of Military Justice (UCMJ). 

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  

   a.  Paragraph 3-7a states an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  
   b.  Paragraph 3-7b states a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 
   
   c.  Chapter 9 provides the authority and outlines the procedures for discharging Soldiers for alcohol or other drug abuse rehabilitation failure.  Offenses involving alcohol or drugs may properly be the basis for discharge proceedings under chapter 14.  Soldiers processed for separation under other provisions of this regulation who also are, or become, subject to separation under this chapter and whose proceedings on other grounds ultimately result in their retention in the Service, will be considered for separation under this chapter.

   d.  Paragraph 14–12c states Soldiers are subject to action per this section for the commission of a serious offense.  Commission of a serious military or civil offense, 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.
   
   e.  Paragraph 14–12c(2) abuse of illegal drugs is serious misconduct.
   
   f.  Paragraph 14–12c(2)(a) relevant facts may mitigate the nature of the offense.  A single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under a or b, above, as appropriate.
   
   g.  Paragraph 14–12c(2)(b) all Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of chapter 9 or section II of this chapter will be processed for separation under a, b, or c, above, as applicable.

   h.  A discharge under other than honorable conditions (UOTHC) is normally considered appropriate for discharges under chapter 14.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly notified of his rights and options at the time of his proposed separation and acknowledged those rights and options.  Counsel has failed to provide and the record does not contain any evidence that the applicant's due process rights to a fair and impartial administrative separation proceeding were curtailed in any way.  The intermediate commander's remark "he went AWOL…" clearly did not impact his due process rights.
2.  The applicant was admitted to the Laurel Ridge facility for alcohol and cocaine dependency detoxification and treatment.  In the course of that treatment he received the diagnosis of PTSD.  The limited medical evidence he provides shows he was progressing well at the time of his release on 12 May 2009.  He was released with a course of medications and a treatment plan, including 
follow-up care and a recommendation that he attend both Alcohol and/or Narcotics Anonymous.  There is no evidence he followed the recommended treatment plan.

3.  Counsel contends the physicians doing follow-up assessments disregarded the Laurel Ridge treatment plan, forcing the applicant to self-medicate with illegal drugs; however, counsel has failed to provide any evidence to document this contention.

4.  Approximately a month after his release, he again tested positive for cocaine use.  The fact that he was using illegal drugs prior to his Laurel Ridge admission belies counsel's contention that a lack of aggressive treatment by the military physicians led to his illegal drug use.

5.  The applicant is, in fact, a repeat drug offender.  While the specific date of his first drug offense is not of record, his medical records show he tested positive at least twice for illegal drug use.  

6.  The applicant must take responsibility for his decision to again use illegal drugs and face the negative consequences of his actions.  

7.  A UOTHC is normally considered appropriate for a discharge for the commission of a serious offense under Army Regulation 635-200, chapter 14.  The fact that the applicant received a GD shows that his honorable service was taken into consideration at the time of his discharge.

8.  The applicant's repeated illegal drug use is a departure from acceptable conduct.  Combining the drug and alcohol abuse with his four periods of AWOL outweighs the mitigation arising from his otherwise good service. 

9.  The reason for his discharge was misconduct by drug abuse.  The applicant committed serious misconduct and his diagnosis of PTSD neither caused nor excuses that misconduct.  



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)                                         AR20130014085



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ABCMR Record of Proceedings (cont)                                         AR20130014085



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