IN THE CASE OF:	  

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140002744 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's general discharge under honorable conditions to an honorable discharge.

2.  Counsel states:

	a.  The applicant's discharge is inequitable because it was the result of alleged misconduct related to a positive urinalysis for marijuana (THC) and a previous Article 15, Uniform Code of Military Justice (UCMJ), for methamphetamine (DMETH) and methylenedioxymethamphetamine (MDMA) (commonly known as Ecstasy), both of which occurred because of his post-traumatic stress disorder (PTSD).

	b.  The applicant's discharge is inequitable in light of his otherwise laudable and meritorious service.

	c.  The applicant was improperly separated under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct.  The applicant has PTSD and experiences abnormal brain chemistry fluctuation and abnormal activation of various brain regions that govern stress responses, which in turn affects his social behavior.

	d.  Characterizing the applicant's behavior as misconduct is improper because his reckless and self-destructive behavior is characteristic of his PTSD diagnosis.  Because his conduct was caused by his PTSD, he should have been deemed unfit for duty because of a medical condition, not misconduct.  Had he received a medical discharge, his service characterization would have been honorable and he would currently be receiving his full schedule of veterans' benefits.

	e.  The applicant had a documented medical condition that should have led to a physical or mental conditions discharge.

	f.  The long-lasting effects of combat fundamentally changed the applicant.

	g.  The applicant was still a successful military policeman after returning from Iraq despite experiencing severe PTSD symptoms and having difficulty dealing with anxiety.

	h.  The applicant was not able to cope with the stress he experienced as a result of his pending redeployment because he had not yet been diagnosed and was not receiving any treatment for his PTSD.

	i.  The applicant knew he needed help and he was unfit to redeploy.  In an act of desperation, he intentionally tested positive during three routine urinalyses to trigger his administrative separation.

3.  Counsel provides a brief with a table of contents listing 12 exhibits.

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 30 March 2004.  He completed training and was awarded military occupational specialty (MOS) 31B (Military Police).

3.  He served in Iraq during the period 9 February 2005 to 22 January 2006.

4.  A review of the applicant's records shows he was awarded two Purple Hearts for wounds incurred in action on 28 April 2005 and 22 September 2005.

5.  On 29 November 2005, the applicant reenlisted with the option of a 12-month stabilization at Fort Hood, TX, starting 29 November 2005.

6.  On 21 December 2006, a urine sample submitted by the applicant tested positive for MDMA and DMETH.

7.  On 14 February 2007, a medical professional interviewed the applicant and reviewed his medical and prescription records.  His records showed no prescription drugs that would have caused a positive urinalysis test result.  The applicant was advised of his rights and referred to the Army Substance Abuse Program (ASAP).

8.  On 26 February 2007, the applicant was counseled on his positive urinalysis and all favorable actions were suspended pending UCMJ action.

9.  On 19 March 2007, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for wrongful use of DMETH.

10.  On 23 April 2007, a urine sample submitted by the applicant tested positive for MDMA, DMETH, and dexamphetamine monophosphate (DAMP) (a metabolite of amphetamine drugs).

11.  On 14 May 2007, the applicant was advised of his rights and he invoked his right to speak to an attorney prior to being interviewed by the medical review officer.

12.  On 29 June 2007, a urine sample submitted by the applicant tested positive for THC.

13.  On 12 July 2007, the applicant was counseled on his positive THC urinalysis and all favorable actions were suspended pending UCMJ action.  He was further counseled on a bar to reenlistment and separation under chapter 14, Army Regulation 635-200, for patterns of misconduct.

14.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 20 July 2007, shows the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and was psychiatrically cleared for any action deemed appropriate by his command.

15.  His DA Form 3822-R also shows, in part, in the remarks section:

* the evaluating physician recommended his command consider discharge under paragraph 5-17 (Other Physical or Emotional Condition) in lieu of a possible misconduct discharge
* Axis I – PTSD, poly-substance abuse – Ecstasy and marijuana
status post-deployment, service member relates mild to moderate but persistent PTSD symptoms, likely secondary to multiple combat trauma/
wounds
* he was not in need of medical evaluation board action

16.  On 5 August 2007, the applicant's immediate commander initiated discharge action based on his pattern of misconduct and Article 15.  The applicant consulted with counsel and he was advised of the basis for the contemplated separation action for commission of a serious offense, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him.  He submitted statements in his own behalf and waived his rights to an administrative separation board.  His statements are not contained in the available records.

17.  On 28 August 2007, the applicant was discharged under honorable conditions (general).  His DD Form 214 shows he completed 3 years, 4 months, and 29 days of creditable active service.

18.  Counsel provided a brief and a table of contents listing 12 exhibits that show, in part:

* on 10 July 2008, the Department of Veterans Affairs (VA) rated the applicant as follows –

*	100 percent – PTSD
*	10 percent – post-traumatic right wrist strain
*	10 percent – thoracolumbar strain, claimed as pain in upper and lower back

* VA Progress Notes that show, in part, the applicant uses marijuana two times a week
* Title 38, Code of Federal Regulations, extracts on direct service connection for wartime and peacetime
* Army Discharge Review Board (ADRB) Proceedings showing –

*	the applicant realized he did not want his lifestyle for himself or his family when he returned from Iraq in 2006
*	he tried to get out on a medical discharge
*	the applicant's discharge was proper and equitable

* VA PTSD criterion A through D
* Fort Hood Fact Sheet Number 0703 that shows the mission of the units on Fort Hood
* Global Assessment of Functioning Scale used to consider psychological, social and occupational functioning on a hypothetical continuum of mental health illness

19.  On 20 November 2012, the ADRB denied the applicant's request for an upgrade of his discharge.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 5-17 provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that interferes with assignment to or performance of duty.  This regulation requires that the condition interferes with the Soldier's ability to perform duty and requires that the diagnosis be so severe that the Soldier's ability to function in the military environment is significantly impaired.  Army policy states the service of personnel separated under this paragraph will be characterized as honorable, general, under honorable conditions, or uncharacterized if in an entry-level status. A general discharge under honorable conditions is normally inappropriate for individuals separated under the provisions of paragraph 5-17.

21.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and 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.  Soldiers are referred to the PDES when they:

*	no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness)
* receive a permanent medical profile of P3 or P4 and are referred by MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, U.S. Army Human Resources Command

22.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request for an upgrade of the applicant's discharge was carefully considered.

2.  Counsel argues that the applicant's discharge was inequitable due to his PTSD.  However, counsel stated the applicant was still a successful military policeman after returning from Iraq.  Additionally, the evidence shows the applicant tested positive for illegal drugs on two occasions prior to being diagnosed with PTSD.

3.  Counsel further argues the applicant intentionally tested positive during three routine urinalyses because he was unfit for redeployment; he needed help but he had little support in dealing with his situation.

4.  The applicant's records are void of evidence showing he was ever diagnosed as being unfit.  Further, he had the option of asking for help when he was counseled on his positive urinalyses and again when he was advised of his rights and spoke with the medical review officer.  Nevertheless, competent medical authority determined there was no need to refer him to a medical evaluation board.

5.  The applicant voluntarily chose to use known illegal substances to avoid redeployment and to trigger his administrative separation.  Although a discharge under other than honorable conditions was normally appropriate based on the authority and reason for his discharge, it appears his chain of command and the separation authority considered his overall record of service and directed the issuance of a general discharge.

6.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

7.  In view of the foregoing there is no basis for granting the request 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 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)                                         AR20140002744



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ABCMR Record of Proceedings (cont)                                         AR20140002744



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