BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140009347 


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, in effect, correction of his record to show he was discharged for physical disability. 

2.  The applicant states:

* at the time of separation he was severely depressed
* Army doctors did not inform him that he had a mental disorder
* he has eleven other disabilities
* he experienced harassment and racial discrimination due to physical disabilities
* he has been diagnosed with an adjustment disorder with anxiety
* he self-medicated due to lack of treatment from medical practitioners and extreme work hours in violation of a profile
* he should have been permitted to complete his medical evaluation board (MEB)
* his drug use was related to a mental disorder
* he is currently taking a prescribed anti-depressant

3.  The applicant provides:

* DA Form 7279 (Equal Opportunity Complaint Form)
* Several self-authored statements
* Seven character references
* Excerpts of his health records
* Two DD Forms 214 (Certificate of Release or Separation from Active Duty)
* Medical profiles
* Several documents pertaining to alleged discrimination
* DA Form 2823 (Sworn Statement)
* Five DA Forms 4856 (Developmental Counseling)
* DA Form 3947 (MEB Proceedings)
* Several letters of complaint 
* Memorandum, subject:  DMV for [applicant], Irwin Army Hospital, Community Behavioral Health Services, Fort Riley, KS 

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the U.S. Navy, U.S. Army Reserve, and the Army National Guard, the applicant enlisted in the Regular Army on                  3 February 2009.

2.  Records show the applicant had two positive urinalysis reports for the use of cocaine.

3.  On 27 January 2011, the applicant was counseled regarding his positive urinalysis test result.  The counseling stated that his misconduct was unacceptable and would not be tolerated.  He was informed that if the misconduct continued, action would be taken to separate him from the Army. 

4.  A memorandum, subject:  Commander’s Report-Proposed Separation Under AR 635-200, Chapter 14-12c(2), Commission of a Serious Offense-Abuse of Illegal Drugs, [Applicant], Headquarters and Headquarters Company, Special Troops Battalion (Rear) (Provisional), 1st Heavy Brigade Combat Team (Rear) (Provisional), 1st Infantry Division, Fort Riley, Kansas, dated 14 July 2011, recommended that the applicant be separated from the U.S. Army  prior to his current term of service.  The factual reason given for this recommendation was wrongful use of cocaine.

5.  On 18 July 2011, the applicant's company commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2), and that he was recommending he receive a general, under honorable conditions characterization of service.  He stated that the abuse of illegal drugs was the basis for the action and he advised the applicant of his rights.

6.  On 25 July 2011, the applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  After consulting with counsel, he voluntarily waived consideration of his case by an administrative separation board contingent upon being retained.  He did not submit any statements on his behalf, but stated that he would provide a statement within 7 days.

7.  A memorandum, subject:  DVM for [applicant], dated 20 October 2011, shows the applicant was diagnosed with an adjustment disorder with anxiety, chronic, moderate.  He did not have a psychiatric profile.

8.  A DA Form 3947, dated 22 February 2012, shows that the applicant was referred to a Physical Evaluation Board (PEB).

9.  On 21 March 2012, the separation authority disapproved the conditional waiver and referred the applicant’s case to an administrative separation board.

10.  A memorandum, subject:  Notification of Administrative Board, signed by the applicant on 29 March 2012, directed the applicant to appear before an administrative board.  He was informed of his rights pertaining to the administrative board.

11.  Email correspondence, dated 12 April 2012, exchanged between the president of the board, the board’s legal advisor, and a doctor, shows the board’s president inquired about the chances of a false positive result due to the applicant taking Percocet and other drugs for chronic pain management.  The doctor stated that other drugs would not trigger a positive result for cocaine.

12.  The administrative separation board found that the allegation of wrongful use of cocaine by the applicant was supported by a preponderance of the evidence.  The board recommended that the applicant be separated from the U.S. Army with a general, under honorable conditions, characterization of service. 

13.  On 2 July 2012, the applicant was counseled regarding his MEB packet and his separation packet.  He was also counseled regarding his second positive urinalysis test for cocaine.  The applicant was command referred to the Army Substance Abuse Program (ASAP).  The applicant disagreed with the information on the counseling form.   He stated he never used cocaine.

14.  A memorandum, subject:  Dual Separation Under AR 635-200, Paragraph    14-12c(2), Misconduct-Abuse of Illegal Drugs, and Paragraph 1-33, Medical Disability, [applicant], Headquarters and Headquarters Company, dated 9 July 2012, shows that the Commanding General (CG) chose to separate the applicant under chapter 14 provisions because the applicant’s medical condition was not a direct or substantial contributing cause of the misconduct and there were no other circumstances that warranted continuing with the PEB processing.

15.  On 1 August 2012, the applicant was discharged under the provisions of chapter 14, Army Regulation 635-200, for misconduct.  His DD Form 214 for this period of service shows he completed 3 years, 5 months, and 29 days of total creditable active military service.
  
16.  On 21 June 2013, the Army Discharge Review Board denied the applicant’s request for an upgrade of his characterization of service from general, under honorable conditions to fully honorable.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.

18.  Army Regulation 635-40 also provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  The commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  This authority may not be delegated.  A copy of the decision, signed by the General Court-Martial Convening Authority (GCMCA), must be forwarded with the disability case file to the PEB.  A case file may be referred in this way if the GCMCA finds the following:

	a.  The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

	b.  Other circumstances warrant disability processing instead of alternate administrative separation.
19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 addresses separation for various types of misconduct, including drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration of term of service.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	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.    

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for change of the narrative reason for his separation.

2.  He tested positive on two separate occasions for the use of cocaine. 

3.  He contends that his drug use was due to a mental disorder; however, he stated on a counseling statement that he never used drugs and that he had evidence to the contrary.  However, he does not provide that evidence.

4.  He contends his narrative reason for separation should be changed because he endured harassment, discrimination, racism, and lack of medical care for injuries he received while on active duty.  Other than the applicant’s statements, there is no evidence showing he was subjected to mistreatment.

5.  He contends he should have been allowed to continue his MEB proceedings.  The governing regulations do not preclude separation for misconduct while undergoing a MEB.
  
6.  In his capacity as the GCMCA and prior to making a decision, the CG reviewed the proceedings for both the MEB and the administrative separation board.  The CG determined that the applicant’s medical condition was not a direct or substantial cause of his misconduct.
7.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  The record fully supports the reason and authority for discharge shown on his DD Form 214.  Therefore, there is no 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)                                         AR20140009347



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ABCMR Record of Proceedings (cont)                                         AR20140009347



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