IN THE CASE OF:	   

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140001238 


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 her general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states there was injustice in processing her for discharge because she was young and not given a sufficient opportunity for rehabilitation.

   a.  The applicant states that, as a result of service in Iraq, she suffered from Intermittent Explosive Disorder, depression, Post-Traumatic Stress Disorder (PTSD), anxiety, insomnia, and chronic headaches.  She was prescribed medication, seen by mental health professionals on a regular basis, and admitted into a mental health institution in Wiesbaden, Germany. 

   b.  The medication her doctors prescribed had little to no effect.  The doctors increased the dosage of her medication, which caused her to zone out at times.  She was on leave and visiting Amsterdam, Holland, at the time of the incident that led to her discharge.  She states, "I had no intensions on [sic] smoking pot, if I was aware of my surroundings I would have never done it."  Upon returning to her unit, she tested positive for THC on a urinalysis test.  She was awarded the Army Good Conduct Medal (AGCM) one month prior to the incident.

   c.  She states that she was rated by the Department of Veterans Affairs (VA) with a combined disability rating of 90%, including a 70% rating for PTSD.  Her disabilities have made it difficult for her to maintain steady work while paying her tuition for school.  An upgrade of her discharge would make her eligible for Post-9/11 GI Bill educational benefits.
3.  The applicant provides copies of her AGCM Certificate, five character reference letters, and VA disability rating letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 June 2008 for a period of 
6 years and 22 weeks.  She was 18 years of age at the time.  She was awarded military occupational specialty (MOS) 92F (Petroleum Supply Specialist).

2.  She was assigned overseas to Germany on 23 December 2009 and she deployed with her unit to Iraq during the period 2 January 2010 to 4 June 2010.  She was promoted to specialist (SPC)/pay grade E-4 on 1 June 2011.

3.  On 16 August 2011, her commander reported to appropriate military law enforcement officials that the results of a unit urinalysis administered on 8 July 2011 revealed a urinalysis sample she provided tested positive for THC.  

4.  On 7 September 2011, she accepted nonjudicial punishment (NJP) for wrongfully using marijuana between on or about 17 June 2011 and 8 July 2011. Her punishment was reduction to private (PVT)/pay grade E-1; forfeiture of $773.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 5 March 2012; and extra duty and restriction for 35 days.

   a.  She appealed the NJP and submitted additional matters to the next superior authority.  In her statement she indicated, in pertinent part, "we never engaged in the use of actual THC" and that "it was possibly a drink that we bought and consumed while in Amsterdam."

   b.  On 13 September 2011, after consideration of all matters presented in the appeal, the appeal authority denied her appeal.

5.  A DA Form 3822 (Report of Mental Status Evaluation), dated 13 September 2011, shows the applicant was diagnosed with Intermittent Explosive Disorder, Depression, and Insomnia.  The examining medical official found the applicant cooperative, normal in perceptions, occasionally impulsive, and had no obvious cognitive impairments.  He also noted she had been screened for PTSD and Traumatic Brain Injury and that the conditions are either not present or, if present, do not meet criteria for a Medical Evaluation Board (MEB).  He opined that the applicant could understand and participate in administrative proceedings, appreciate the difference between right and wrong, met medical retention requirements (i.e., did not qualify for an MEB), and was fit for duty, including deployment.

6.  A DD Form 2808 (Report of Medical Examination) shows she underwent a separation medical examination, on 3 October 2011, and that the medical doctor found her qualified for service/retention.

7.  On 14 November 2011, her company commander notified her that he was recommending her for separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Misconduct), paragraph 14-12c, for commission of a serious offense.

	a.  The reason for the commander's proposed action was her wrongful use of marijuana between on or about 17 June 2011 and 8 July 2011, confirmed when she tested positive on a command-directed urinalysis on 8 July 2011.

	b.  She was advised of her rights and the separation procedures involved.

   c.  She was also informed that the commander was recommending she receive a general, under honorable conditions discharge.

8.  The applicant consulted with legal counsel and she was advised of the rights available to her.

	a.  She was advised she may expect to encounter substantial prejudice in civilian life in the event a discharge under other than honorable conditions was issued to her.

	b.  She acknowledged she understood that if she received a general, under honorable conditions discharge she may be ineligible for many or all benefits as a veteran under both Federal and States laws, and that she may expect to encounter substantial prejudice in civilian life.

	c.  The applicant and her counsel placed their signatures on the document.

	d.  She submitted five statements in her behalf; one from a noncommissioned officer and four from Soldiers who were her peers.  All of the individuals attested to the applicant's dedication to duty and positive character traits both on and off duty.
	
9.  Her company commander recommended approval of her separation for misconduct based on commission of a serious offense.  The commander's recommendation shows she completed a mental status evaluation and a medical examination.

10.  The intermediate commander recommended approval of her separation with a general, under honorable conditions discharge.

11.  On 7 December 2011, the separation authority approved her discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, and directed she be discharged for misconduct based on commission of a serious offense with a general, under honorable conditions discharge.

12.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under honorable conditions on 4 January 2012 under the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct (serious offense).  She had completed 3 years, 6 months, and 
9 days of net active service during this period.

13.  On 19 October 2012, the Army Discharge Review Board determined that her discharge was both proper and equitable and voted to deny relief.

14.  In support of her application she provides the following documents:

   a.  AGCM Certificate that shows the applicant was awarded the AGCM for exemplary behavior, efficiency, and fidelity from 25 June 2008 to 24 June 2011.

   b.  The same five character reference letters (summarized above) that she submitted to the separation authority; and

   c.  VA Atlanta Regional Office, Decatur, GA, letter, dated 7 August 2013, which shows she is receiving service-connected disability compensation based on 90% disability.

15.  Army Regulation 635-200 sets forth the authority for the separation of enlisted personnel.

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.

		(1)  The conditions that subject Soldiers to discharge include the 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.

		(2)  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.  

	b.  Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be upgraded because she was young; she suffered from Intermittent Explosive Disorder, depression, PTSD, anxiety, insomnia, and chronic headaches; she had no intention of wrongfully using marijuana; she was not given a sufficient opportunity for rehabilitation; she was awarded the AGCM one month prior to the incident; and an upgrade of her discharge will make her eligible for educational benefits.

2.  The applicant successfully completed training, was awarded MOS 92F, and completed 3 years of active service without a discreditable incident of record.  Thus, her contention that she was immature is not supported by the evidence of record.  In addition, there is no evidence that indicates she was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record shows that as part of her separation processing, she was seen by both a mental health provider and a medical doctor, her medical conditions were reviewed, and she was found fit for retention in the Army.  The mental health provider noted that she had been screened for PTSD and that the conditions were either not present or, if present, did not meet criteria for an MEB.  Moreover, there is no evidence of record that shows she was diagnosed with any unfitting conditions that required referral to an MEB.  Moreover, her medical conditions are not a basis to justify her act of misconduct or for changing the type of discharge she received.

4.  The sincerity of her comment that she had no intention of using marijuana (emphasis added) is not in dispute.  However, the fact remains that she tested positive for the chemical THC.  Moreover, the appeal authority considered her explanation of the possible reason she tested positive for THC and he denied her appeal.

   a.  It is noted that in her appeal to the NJP appeal authority she stated, "we never engaged in the use of actual THC" and that "it was possibly a drink" (emphasis added) that we bought and consumed while in Amsterdam." 
   
   b.  Now, in her application to this Board she states, "I had no intensions on [sic] smoking pot" (emphasis added)."

   c.  The two explanations do not appear to be consistent.

   d.  Moreover, given her own statement to the appeal authority denying any intentional use of an illegal substance (emphasis added), it is not clear what "opportunity for rehabilitation" she believes was appropriate or necessary, if she had accidentally ingested THC and was not a drug abuser.

5.  Records show she was awarded the AGCM for exemplary behavior, efficiency, and fidelity from 25 June 2008 to 24 June 2011 (emphasis added). Records also show, on 7 September 2011, she accepted NJP for wrongfully using marijuana between on or about 17 June 2011 (emphasis added) and 8 July 2011.  Thus, the evidence of record shows that she received the AGCM prior to the discovery of her wrongful use of marijuana during a portion of the period covered by the award.  This calls into question whether the approving authority would have awarded the applicant the AGCM, if the information concerning her misconduct had been known at the time.

6.  During the period of service under review, she tested positive for THC and received NJP for wrongful use of marijuana, she received the AGCM that included a portion of the period of service of her misconduct, and she was reduced to private (E-1) prior to her discharge.  Thus, her record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and she is not entitled to an honorable discharge.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

8.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the 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)                                         AR20140001238



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ABCMR Record of Proceedings (cont)                                         AR20140001238



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