IN THE CASE OF:	  

		BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140008643 


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 discharge from under honorable conditions (general) to a fully honorable discharge.  He further requests deletion of the narrative reason for separation (drug abuse) that is currently listed on his   DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant defers his statement and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's general discharge and deletion of the narrative reason for separation listed on his DD Form 214.

2.  Counsel states the applicant's discharge is inequitable.  He provides a synopsis of the applicant's enlistment and training, overall military service, deployment, exposure to an improvised explosive device (IED), post-service and present post-traumatic stress disorder (PTSD) diagnosis, and the decision by the Army Discharge Review Board (ADRB).  He argues: 

* the applicant continues to suffer from PTSD, which resulted from his patrol being hit by an IED that killed three of his close friends
* his PTSD should have been considered as a mitigating factor in evaluating his discharge for drug abuse
* he had a sterling record before, during, and after his military service and his discharge is inequitable 
* the ADRB erred and improperly denied his petition for an upgrade as it did not treat the applicant's PTSD as a mitigating factor
* PTSD should have been considered a mitigating factor and Army policy changes cast doubt on the applicant's discharge status

3.  Counsel provides:

* DD Form 214 
* DA Form 4980-14 (Army Commendation Medal (ARCOM) Certificate) with DA Form 638 (Recommendation for Award)
* an unsigned letter of support from a fellow Soldier
* a statement the applicant sent to the Department of Veterans Affairs (VA) 
* an internet article about Iraqi prison guards
* VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD)
* VA progress notes and rating decision
* DD Form 2808 (Report of Medical Examination) and DD Form 2807-1 (Report of Medical History)
* a post-service medical statement 
* multiple post-service certificates 
* the decision of the ADRB, as promulgated in ADRB Case Number AR20120017331
* a post-service statement from a licensed psychologist
* a list of other ADRB cases concerning applicants diagnosed with PTSD 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 July 2005.  He completed training and was awarded military occupational specialty 63M (Bradley Fighting Vehicle Systems Mechanic).  He was advanced to specialist (SPC)/E-4 and was assigned to the 2nd Squadron, 13th Cavalry Regiment, Fort Bliss, TX.

2.  He served in Iraq from 20 October 2006 to 12 December 2007.  He was awarded or authorized the Iraq Campaign Medal with campaign star, Army Commendation Medal, National Defense Service Medal, Overseas Service Ribbon, Combat Action Badge, and Driver/Mechanic Badge. 

3.  On 26 February 2008, he participated in a unit urinalysis and his urine sample tested positive for marijuana.  He was subsequently enrolled in the Army Substance Abuse Program. 

4.  On 26 March 2008, he participated in a unit urinalysis and his urine sample tested positive for marijuana.  
5.  On 29 May 2008, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between on or about 26 March 2008 and on or about 25 April 2008.  He was reduced to E-1.

6.  On 19 August 2008, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation      635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12(c) for misconduct-commission of a serious offense.  The specific reasons were stated as his illegal use of marijuana on two separate occasions.  The immediate commander recommended a general, under honorable conditions discharge. 

7.  On 19 August 2008, he acknowledged receipt of his commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and/or a personal appearance before a separation board and he elected not to submit a statement in his own behalf.  He acknowledged he understood that:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge

8.  Subsequent to his acknowledgement, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct (wrongful use of marijuana).  The immediate commander further recommended an under other than honorable conditions discharge.  The immediate commander remarked that it was no longer feasible to accomplish other disposition because the applicant had lost all ability and potential to be of useful service to the team, mission, and unit.  He showed no desire to remediate and his potential for further service had been significantly degraded and he no longer showed potential to uphold the Army values. 

9.  The applicant's intermediate commander thoroughly reviewed the separation packet and recommended immediate discharge in accordance with Army Regulation 635-200, paragraph 14-12(c), with an under honorable conditions (general) character of service.

10.  Consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct - commission of a serious offense and directed the applicant be issued an Under Honorable Conditions (General) Discharge Certificate.  On 5 September 2008, he was accordingly discharged.

11.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.  He completed 3 years, 1 month, and 24 days of net active service.  Item 26 (Separation Code) of his DD Form 214 shows the code "JKK" and item 28 (Narrative Reason for Separation) shows the reason as "Misconduct-Drug Abuse."

12.  The applicant petitioned the ADRB for an upgrade of his discharge, wherein he claimed he was diagnosed with PTSD and based his request on the equitable grounds that PTSD affected his performance in service.  However, on 15 March 2013, the ADRB found he was properly and equitably discharged and denied his request for an upgrade of his discharge.

13.  The applicant provides: 

	a.  A letter, dated 10 March 2011, to the VA claiming service-connection for bilateral hearing loss, left ankle injury, back injury, sleep disorder, depression, and left eye injury. 

	b.  An intent article, dated 12 December 2011, regarding an Iraqi prison 
flare-up and how guards restored order.

	c.  VA Form 21-0781, dated 9 July 2010, wherein he stated that he was on patrol on 6 September 2007 when an IED went off and took the lives of three of his friends. 

	d.  Progress notes and VA rating decision, dated 8 August 2011, awarding him service-connected disability compensation for PTSD with major depressive disorder, effective 29 June 2010.

	e.  DD Form 2808 that shows he underwent a separation physical on 13 July 2008 and he was found medically qualified.  Although the doctor listed depression, temporomandibular dysfunction, and a rash, he assigned him a PULHES of "1-1-1-1-1-1-1" indicating he was medically qualified for retention or separation.

	f.  A medical statement, dated 5 February 2010, from his employer who states he demonstrated an ability to follow directions and he got along well with others. 

	g.  Multiple post-service certificates related to college scholarships. 

	h.  A medical statement, dated 12 April 2014, from a licensed psychologist who states the applicant has a history of PTSD stemming directly from his military service and that the PTSD that he experienced in the service directly resulted in his discharge-related conduct. 

14.  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 included 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 an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct.

	b.  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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he suffered from PTSD due to his military service in Iraq and the evidence he submitted was carefully considered; however, there is insufficient evidence to support his claim.  There is no evidence that the applicant's repeated use of illegal drugs (marijuana) was caused by any medical condition.

2.  The evidence of record shows the applicant committed serious offenses on more than one occasion.  Accordingly, his commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

3.  There is no evidence of record and he provides none to support his contention that he was wrongfully or unjustly discharged.  His continued use of illegal drugs clearly shows the quality of his service was diminished below that meriting an honorable discharge.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for upgrading his discharge to an honorable discharge.

4.  His separation code and narrative reason for separation were assigned based on the fact that he was discharged under the provisions of chapter 14-12c of Army Regulation 635-200 due to his misconduct - commission of a serious offense.  Absent the commission of this offense (illegal drugs), there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his misconduct (illegal drugs).  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 his DD Form 214.  

5.  A comprehensive review of the applicant's records and the evidence he and his counsel provided failed to show an error or injustice.  As a result, he is not entitled to 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)                                         AR20140008643





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140008643



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1