BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140003188 


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, through her Member of Congress, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: 

* Item 24 (Character of Service) from "Under Honorable Conditions (General)" to "Honorable"
* Item 28 (Narrative Reason for Separation) from "Misconduct (Drug Abuse)" to "Condition - Not a Disability" or "Disability - Temporary"

2.  The applicant states

* her discharge was inequitable and should be upgraded and the narrative reason for separation should be changed
* she suffered an undiagnosed psychiatric condition that led to a single incident of misconduct in 39 months of service
* her discharge does not accurately reflect the full nature of her military service and inhibits her ability to secure gainful employment
* her condition was not diagnosed until she sought professional counseling through the Department of Veterans Affairs (VA)

3.  The applicant provides:

* Congressional correspondence
* DD Form 214
* Letters from the VA
* VA rating decision
* Notification of Referral for Mental Health Evaluation 
* Multiple DA Forms 4856 (Developmental Counseling Form)
* Report of Mental Status Evaluation 
* DD Form 2807-1 (Report of Medical History)
* DD Form 2697 (Report of Medical Assessment)
* DD Form 2808 (Report of Medical Examination)
* Multiple VA Forms 21-438 (Statement in Support of Claim)
* Multiple character reference letters
* Multiple certificates of achievement, attendance, appreciation, or training
* Additional duty appointment memoranda
* Internet printouts
* Selected VA medical records
* College transcripts

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's records show she enlisted in the Regular Army on 31 March 2004 and she held military occupational specialty 25S (Satellite Communications System Operator/Maintainer).  

3.  She served in Afghanistan from 3 February 2006 to 20 January 2007.  She was awarded or authorized the Army Commendation Medal, National Defense Service Medal, Afghanistan Campaign Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and NATO Medal. 

4.  On 23 October 2006, she was referred to Combat Stress Control for a command-directed evaluation by her commander following incidents of self-injurious behavior and concerns about her eating habits.  The results of the evaluation revealed no mental health issues that would preclude her from completing her duties in theater or warrant her discharge through medical channels.  She was fit for duty.  Additionally: 
	a.  It was apparent there may have been some personality issues affecting her ability to cope with the difficulties of deployment (boredom).  She was at risk of self-injurious behavior due to her lack of appropriate coping skills.  She was, however, at a minimal risk for suicide or to inflict harm.  It was recommended the unit check on her continuously to assess her risk and increase support.  

	b.  It was also recommended she follow-up with Combat Stress Control on a voluntary basis for support and assistance in managing her mood and coping effectively with stress. 

5.  On 10 April 2007, agents of the U.S. Army Criminal Investigation Command (CID) at Fort Drum, NY were notified the applicant had tested positive for cocaine during a unit urinalysis.  A subsequent investigation confirmed the applicant wrongfully used cocaine when her urine sample tested positive during a urinalysis on that date.  After being advised of her rights, she confessed to the CID of her cocaine use. 

6.  On 30 April 2007, she underwent a separation physical.  The military doctor concluded she was qualified for retention and/or separation and noted that she should continue behavioral counseling. 

7.  On 7 May 2007, she accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine on or about 27 March 2007 and for willfully disobeying a lawful order from a superior commissioned officer between 27 and 29 April 2007.

8.  Her punishment consisted of a reduction to the lowest enlisted grade, a forfeiture of pay, and extra duty and restriction.  She elected not to appeal her punishment.  

9.  On 17 May 2007, she underwent a mental status evaluation.  The Chief of Mental Health Services stated that he evaluated her as part of a proposed separation action for misconduct.  She was made aware of the purpose of this evaluation, its confidentiality, and elected to proceed.  Based on the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, her diagnosis is as shown below.  She was psychiatrically cleared for administrative separation deemed appropriate by her chain of command

* Axis I: Occupational problems, rule out substance abuse, depression
* Axis II: Diagnosis deferred 

10.  On 30 May 2007, the applicant's immediate commander notified her of his intent to initiate separation action against her in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, commission of a serious offense (drug abuse).  He cited the applicant's positive urinalysis.  He recommended an under honorable conditions (general) discharge.

11.  On 31 May 2007, the applicant acknowledged receipt of the commander's intent to separate her.  She subsequently consulted with legal counsel and she was advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive, the possible effects of this discharge, and the procedures and rights available to her.  She further indicated she understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her and she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions. She submitted multiple character reference letters and/or letters of support from various Soldiers who worked with her or knew her. 

12.  Subsequent to this acknowledgement, the immediate commander initiated separation action against her under the provisions of paragraph 14-12c of Army Regulation 635-200.  He stated that her actions showed a complete lack of Army values, her conduct was discreditable and prejudicial to good order and discipline, and her behavior violated all the acceptable standards.  Her intermediate commander recommended approval with the applicant's service characterized as general under honorable conditions. 

13.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (drug abuse) and directed her service be characterized as general under honorable conditions. Accordingly, the applicant was discharged on 28 June 2007. 

14.  Her DD Form 214 confirms she was discharged by reason of misconduct (drug abuse) in pay grade E-1 on 28 June 2007 under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions (general).  This form shows she completed 3 years, 2 months, and 28 days of creditable active service during the period under review.  Additionally, her DD Form 214 shows in:

* item 26 (Separation Code) –"JKK"
* Item 28 (Narrative Reason for Separation) – "Misconduct (Drug Abuse)"

15.  On 24 October 2008, the Army Discharge Review Board (ADRB) reviewed her discharge and determined she was properly and equitably discharged.  As such, the ADRB denied her petition for an upgrade of her discharge.

16.  Subsequent to her discharge from the Regular Army, on 6 June 2013, the VA awarded her service-connected disability compensation for dysthymic disorder (claimed as psychiatric disorder), effective 2 January 2013. 

17.  She provides multiple VA Forms 21-438 (Statement in Support of Claim); multiple character reference letters; and multiple certificates of achievement, attendance, appreciation, or training. 

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record.

19.  Army Regulation 635-200, 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.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty.  Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.

21.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  SPD code "JKK" is the correct code for Soldiers separating under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct – drug abuse.

22.  Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred into the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by HRC

	c.  The PDES assessment process involves two distinct stages:  The medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

23.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Paragraph 3-3a provided that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.  Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.

24.  Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the characterization of service: 

	a.  The evidence of record shows the applicant committed a serious offense in that she wrongfully used drugs (cocaine).  Accordingly, her chain of command initiated separation action against her.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

	b.  Her discharge was appropriate because the quality of her service was not consistent with acceptable personal conduct and performance by Army personnel.  Her misconduct and failure to respond positively to counseling by members of her chain of command diminished the quality of her service.

	c.  Based on her illegal drug use, the applicant's service was not satisfactory and insufficiently meritorious to warrant an honorable discharge.  Therefore, she is not entitled to an honorable discharge.  

2.  With respect to the narrative reason for separation:

	a.  The applicant's narrative reason for separation was assigned based on the fact that she was separated under the provisions of of Army Regulation 635-200  chapter 14, for misconduct, drug abuse.  Absent the misconduct - drug abuse - there was no fundamental reason to process her for separation.  The underlying reason for her discharge was her misconduct (drug abuse).  The only valid narrative reason for separation permitted under that paragraph is "misconduct (drug abuse)" and the appropriate separation code associated with this discharge is "JKK" which is correctly shown on her DD Form 214.

	b.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Her narrative reason for separation is correct.  She is not entitled to correction of her narrative reason for separation.

3.  With respect to the "Condition-Not a Disability" narrative reason: 

	a.  the regulation contains a provision that provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty.  Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.  

	b.  However, this is not the case here.  The reason for her separation was her abuse of illegal drugs.

4.  With respect to disability separation: 

	a.  There is no evidence in her records and she provides none to show she suffered from a condition that failed retention standards and was found unfitting.  Likewise, her records do not contain any evidence and she provides none to show her misconduct was caused by any bona fide diagnosed behavioral health issue.  Furthermore, when her commander advised her of the initiation of separation action, she underwent a separation physical and a mental status evaluation.

	b.  There is no evidence in her records that shows she was physically unfit at the time of her discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The available evidence shows she was qualified for retention/separation and was psychiatrically cleared for separation. 

	c.  She was not discharged because of any behavioral health issue.  She was discharged because she committed a serious offense.  A discharge of this nature normally results in an under other than honorable conditions characterization of service.  She received a general discharge.  This was neither unjust nor harsh.  On the contrary, given the seriousness of her misconduct, which could have been tried by a court-martial, it appears her chain of command was lenient.  

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)                                         AR20140003188



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ABCMR Record of Proceedings (cont)                                         AR20140003188



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