IN THE CASE OF:	   

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140013261 


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 correction of her records to show she was honorably discharged for medical reasons. 

2.  The applicant states she should have been honorably discharged and the narrative reason for her separation should have been medical.  She was receiving medical treatment for several illnesses and she was discharged without having any medical benefits.  This is unjust.  She only had 35 days left on her enlistment contract and the Army discharged her with no benefits.  She was being treated for anxiety disorder, seizures, and headaches.  This is not the way a person should be treated while serving their country.  

3.  The applicant provides:

* Statement in Support of [Department of Veterans Affairs] Claim
* Separation Notification Memorandum and Election of Rights Memorandum
* Internet printout about medications that test positive for THC
* Sworn Statement
* Back page of DD Form 2807-1 (Report of Medical History)
* Back page of DA Form 4833 (Commander's Report of Disciplinary Action)
* Back page of DA Form 4856 (Developmental Counseling Form)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* THC Retest Results
* Internet printout from CVS
* Service medical records
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel (listed on her application) did not make a request or statement or submit any evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she enlisted in the Regular Army on 3 February 2009.  She completed basic combat and advanced individual training and she was awarded military occupational specialty (MOS) 94A (Land Combat Electronic System Repairer). 

2.  Following completion of MOS training, she was assigned to B Company, 325th Brigade Support Battalion, 3rd Brigade Combat Team, 25th Infantry Division, Schofield Barracks, HI. 

3.  On 16 April 2010, she underwent a unit urinalysis and her urine sample tested positive for THC (marijuana).  A retest conducted on 4 May 2010 yielded a positive result.  

4.  On 7 September 2010, the applicant's unit commander notified the applicant that he was considering whether she should be punished under Article 15 of the UCMJ for wrongfully using marijuana between 16 March and 16 April 2010.  She was given 48 hours to consult with counsel.

5.  On 9 September 2010 (erroneously shown as 19 September), the applicant declined trial by court-martial and requested a closed hearing.  She indicated she had been afforded the opportunity to consult with counsel and she understood her rights.  

6.  On 13 September 2010, at a closed hearing after having considered all matters presented, the imposing commander found her guilty of all specifications and ordered the imposition of punishment (not available because the back page of the DA Form 2627 is not available for review).  

7.  She indicated that she desired to appeal her punishment and submit additional matters.  However, she did not provide her appeal and/or the decision of the next higher commander.  Her DA Form 2627 is not filed on her official military personnel file because she was holding the rank of E-4 or below at the time. 


8.  Her complete separation packet is not available for review with this case.  However, her records contain: 

	a.  Notification of Separation Memorandum, dated 22 November 2010.  This memorandum shows the applicant's immediate commander notified her that he was initiating action to separate her from the service under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administration Separations), paragraph 14-12c for misconduct - serious offense.  The immediate commander stated that the applicant tested positive for marijuana on 16 April 2010.  The commander recommended a general discharge.

	b.  Undated/Unsigned Election of Rights Memorandum.  This memorandum shows she acknowledged receipt of the commander's notification to separate her; she had 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 and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She did not indicate if she requested or waived consideration of her case by an administrative separation board and a personal appearance before an administrative separation board, and she did not indicate if she elected to or not to submit a statement in her own behalf.  She further indicated she understood she could expect to encounter substantial prejudice in civilian life if a general discharge was issued to her and she understood 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.

	c.  Orders 340-0009, issued by Headquarters, U.S. Army Garrison, Hawaii, on 6 December 2010, ordering her reassigned to the U.S. Army transition point for transition processing effective 28 December 2010 (amended to 10 December 2010). 

	d.  A duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows she discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct (drug abuse) with service characterized as under honorable condition (general).  She completed 1 year, 10 months, and 26 days of creditable active service.  The DD Form 214 she was issued at the time shows in:

* Item 23 (Type of Separation) – Discharge
* Item 24 (Character of Service) – Under Honorable Conditions (General)
* Item 25 (Separation Authority) – AR 635-200, paragraph 14-12c
* Item 26 (Separation Code) – JKK
* Item 28 (Narrative Reason for Separation) – Misconduct (Drug Abuse)
9.  On 28 November 2011, she petitioned the Army Discharge Review Board (ADRB) for a review of her discharge.  However, on 29 May 2012, after a careful review of her application, service records, and the evidence she submitted, the ADRB determined she was properly and equitably discharged.  Accordingly, the ADRB denied her request for a change to the character of service or reason for discharge.

10.  She provides: 

	a.  Sworn statement wherein she denied the use of marijuana and requested to be retested. 

	b.  Service medical records that she was seen for routine maladies, including anxiety, laceration, seizure-like activity, and other illnesses.  However, the medical records she submitted do not indicate:

* she suffered from an illness or an injury that did not meet retention standards of AR 40-501 (Standards of Medical Fitness) 
* she was issued a permanent profile that restricted her ability to perform the duties required of her former grade and MOS
* she was diagnosed by medical authorities of a mental or physical disability 
* she suffered an injury or an illness that would have warranted her referral to the Physical Disability Evaluation System (PDES)

11.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 1-35 states that when the military treatment facility (MTF) or the attending medical officer determines a member being considered for elimination for misconduct does not meet the retention medical standards, he/she will refer that member to a medical board.  The MTF commander will furnish a copy of the approved board proceedings to the commander exercising separation authority over the member concerned.  The commander will direct the member to be processed through disability channels per AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when the disability is determined to be the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

	c.  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.

12.  AR 635-40 establishes the 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.

	a.  It states disability compensation is not an automatic entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	b.  Paragraph 4-3 states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  A case file could be referred to a physical evaluation board (PEB) if the separation authority finds the disability is the cause or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

13.  Title 10, U.S. Code, 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, U.S. Code, 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.

14.  AR 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKK" SPD code is the correct code for Soldiers separating under AR 635-200, paragraph 14-12c by reason of misconduct – drug abuse.
15.  AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the provisions of Article 15, UCMJ.  

	a.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF, is as important as the decision relating to the imposition of the NJP itself.

	b.  Paragraph 3-37 states that for Soldiers E-4 and below who have been in the Army less than 3 years as of the date punishment is imposed, the original DA Form 2627 will be filed locally in NJP files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer from the unit, whichever occurs first.  For these Soldiers, the imposing commander should annotate the filing instructions on the DA Form 2627 as "Not Applicable" (N/A).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have been honorably discharged for medical reasons. 

2.  With respect to the character of service:

	a.  The applicant’s record is void of the complete facts and circumstances that led to her discharge.  However, her record contains NJP action and the commander's notification memorandum that clearly show she committed a serious offense.  Her DD Form 214 further confirms she was discharged on 10 December 2010 under the provisions of AR 635-200, paragraph 14-12c for "misconduct – drug abuse" with a general discharge.

	b.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.  It is also presumed that her discharge was appropriate because the quality of her service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  It appears the chain of command may have considered her inexperience and overall circumstances when she was given a general discharge instead of the normal under other than honorable conditions discharge.

	c.  There is an insufficient evidentiary basis in which to upgrade her discharge to an honorable.  Her record contains clear evidence of wrongful use of and possession of a controlled substance, a serious offense punishable under the UCMJ with a dishonorable discharge.  Her discharge is appropriate because the quality of her service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, she is not entitled to an honorable discharge.

3.  With respect to the medical discharge:

	a.  She provides multiple documents confirming that she sustained various illnesses.  She centers her argument around the multiple maladies she encountered during her military service despite the fact that such maladies are not in question.  They are well documented in the medical records she provides. 

	b.  The key issue is not whether the applicant sustained any illnesses during her military service.  The key issue is whether such medical conditions failed retention standards and/or were found unfitting.  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 fully able to perform the duties of her grade and/or MOS. 

	c.  Disability compensation is not an automatic entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  Here, the applicant's active duty service was primarily interrupted by her misconduct (drug abuse), not by any medical conditions.

	d.  The applicant failed to show through the evidence submitted or the evidence of record that she should have been processed for separation due to physical disability.  In view of the circumstances in this case, she 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)                                         AR20140013261





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013261



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1