IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150004366 


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, a change to the narrative reason for his separation to show that he was medically discharged.

2.  The applicant states that he was under a doctor's care while on active duty at the same time he was being processed for administrative discharge.  He states that he did not have a physical profile and he reported for duty while taking medication that was prescribed by a doctor when he was an inpatient at Walter Reed Army Medical Center (WRAMC).  He was reported for wrongdoing during his off-duty time.  He did not receive any counselling or disciplinary actions and he was discharged for drug abuse.  He adds that he is having a difficult time securing civilian employment due to the narrative reason for his discharge.

3.  The applicant provides a copy of Work Solutions Road and Rail Service Hiring Event bulletin that announced an application date of 26 February 2015 for full time openings for Vehicle Shuttler positions.

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 U.S. Army Reserve on 31 August 2005 for a period of 8 years.  He further enlisted in the Regular Army (RA) on 7 September 2005 for a period of 3 years.

3.  WRAMC Psychiatric Medical Evaluation Board (MEB) shows the applicant was admitted on 4 January 2006 for evaluation of odd behavior.

   a.  He was diagnosed with:

* Axis I:  Schizoaffective disorder, bipolar type manifested by persistent symptoms of delusions, hallucinations, grossly disorganized behavior, and negative symptoms (affective flattening, avolition) for more than two weeks in the absence of prominent mood symptoms.  During uninterrupted periods of illness, patient exhibits episodes of mixed mood symptoms manifested by days of increased goal-directed activity, decreased need for sleep, racing thoughts, pressured speech and impulsive behavior immediately followed by a period of depressed mood, hypersomnia, loss of energy and irritability that markedly impair his social and occupational functioning.  External precipitating conditions:   Moderate; Military service.  Premorbid personality and predisposition:  Moderate; physical/mental abuse as a child, family history of Schizoaffective disorder.  Degree of military/psychiatric impairment:  Marked.  Impairment for social and industrial adaptability:  Definite.  Line of Duty:  No.  Condition existed prior to military service, but current symptoms were aggravated by service.
* Axis II:  None
* Axis III:  None
* Axis IV:  Military service
* Axis V:  Global Assessment of Functioning = 40 (Admission)
  65 (Discharge)

   b.  Conclusions/Recommendations:  This service member does not meet the retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness).  This patient has received maximum benefit from impatient psychiatric hospitalization and is discharged to the psychiatric partial program.  The service member is competent to handle his financial affairs and to participate in Board proceedings.  This service member is referred to a Physical Evaluation Board (PEB) for final disposition.
   c.  The applicant was discharged from WRAMC on 18 January 2006.

   d.  The MEB is signed by:

* Lieutenant Colonel R___ E____, Medical Doctor, Attending Psychiatrist
* Captain N___ M. B____ (U.S. Air Force), Doctor of Osteopathic Medicine, Master of Public Health, Family Practice/Psychiatry

4.  A DA Form 4856 (Developmental Counseling Form), dated 19 January 2006, shows the applicant was counselled by Drill Sergeant (Staff Sergeant) C___ E. R____ for wrongful use and possession of drugs based on positive results of a company-wide Urinalysis conducted on 3 January 2006.

5.  On 26 January 2006, the applicant received nonjudicial punishment (NJP) for wrongfully using marijuana and cocaine from on or about 4 December 2005 to
3 January 2006.

6.  On 31 March 2005, the company commander notified the applicant that he was recommending him for separation under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Misconduct), paragraph 14-12c, for misconduct – abuse of illegal drugs.

   a.  The reason for the commander's proposed action was, on 3 January 2006,  the applicant submitted a urine sample that tested positive for the use of marijuana.  The commander noted that, as a result of the applicant's misconduct, it was mandatory that separation action be processed and submitted to the separation authority for final decision.

   b.  The applicant was advised of his rights and the separation procedures involved.  He was also advised that the separation authority may direct that his service be characterized as honorable or under honorable conditions, or he may receive an entry-level separation (uncharacterized), if in an entry-level status.
The commander also informed him that he was recommending a General, Under Honorable Discharge.

	c.  The applicant acknowledged receipt of the commander's notification and that he had been advised of his right to consult with counsel.

7.  Following notification of the separation action, the applicant acknowledged, 
"I have been advised by my consulting counsel of the basis for the contemplated action to separate me for a Misconduct – abuse of illegal drugs under the provisions of AR 635-200, Chapter 14, paragraph 14-12(c), and its effects; of the rights available to me; and the effect of any action taken by me in waiving my rights.  I understand that if I have less than 6 years of total active and reserve military service at the time of initiation of recommendation for separation, I am not entitled to have my case heard by an administrative separation board unless I am being considered [for a characterization of discharge] under other than honorable conditions."

   a.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him.

   b.  The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could make application to the Army Discharge Review Board (ADRB) or ABCMR for upgrading his discharge.  However, an act of consideration by either board did not imply that his discharge would be upgraded.

   c.  The applicant waived consulting counsel.  He acknowledged that, before completing the form, he was afforded the opportunity to consult with appointed counsel for consultation; or military counsel of his own choice, if he or she was reasonably available; or civilian counsel at his own expense; however, he declined the opportunity.  He also declined to submit statements in his own behalf.

	d.  The applicant placed his signature on the document.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action for misconduct – abuse of illegal drugs with a general discharge.

9.  The separation authority approved the commander's recommendation for the applicant's discharge for misconduct based on misconduct – abuse of illegal drugs and directed that his service be characterized as under honorable conditions.

10.  The applicant's DD Form 214 shows he entered active duty this period on
7 September 2005 and he was discharged on 5 May 2006 under honorable conditions under the provisions of AR 635-200, paragraph 14-12c, based on misconduct (drug abuse).  He had completed 7 months and 29 days of net/total active service during this period.


11.  The applicant submitted an application to the ADRB for a change to the narrative reason of his separation to a medical discharge.  On 19 August 2009, the applicant was notified that his request for medical discharge must be referred to the ABCMR and he was encouraged to provide medical documents in support of his request.

12.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.  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.  Separation by reason of disability requires processing through the Physical Disability Evaluation System (PDES).

	a.  Chapter 3 (Policies), paragraph 3-4 (Line of Duty (LOD) Decisions), provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

		(2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

	b.  Chapter 4 (Procedures), paragraph 4-10 (The MEB), provides that MEB's are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on criteria in AR 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

13.  Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), lists Article 112a (Wrongful use, possession, etc., of controlled substances) and shows, in pertinent part, any person subject to this chapter who wrongfully uses, possesses, manufactures, or distributes a substance described in subsection (b), shall be punished as a court-martial may direct.  The substances referred to in subsection (a) are:  opium, heroin, cocaine, amphetamine, lysergic acid, diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance.

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

   a.  Chapter 1 (General Provisions), Section III (Separation Authority), paragraph 1-19 (Authority to approve or disapprove separation), provides that commanders who are special court-martial convening authorities are authorized to approve or disapprove separation under the provisions of chapter 14 when discharge under other than honorable conditions is not warranted and the notification procedure is used.  An honorable discharge may be ordered only when the commander exercising general court-martial jurisdiction has authorized the exercise of separation authority in the case.

   b.  Chapter 2 (Procedures for Separation), paragraph 1-33 (Disposition through medical channels), provides that, except in separation actions under chapter 10 and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.  
   
    	(1)  Paragraph 1-33b provides that when the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 14 does not meet the medical fitness standards for retention (see AR 40-501, chapter 3), he/she will refer the Soldier to an MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEB.

    	(a)  If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of AR 635-40 the MTF commander will furnish copies of the approved MEB proceedings to the Soldier's General Court-Martial Convening Authority (GCMCA) and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the Uniform Code of Military Justice (UCMJ) has not been initiated, and one of the following has been determined:

    	(b)  The Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.

    	(c)  Other circumstances of the individual's case warrant disability processing instead of further processing for administrative separation.

    	(2)  The authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative separation provisions will not be delegated.

    	(3)  The GCMCA's signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB.

    	(a)  Copies of the GCMCA's decision will be furnished to the unit commander and included in the administrative separation proceedings.

    	(b)  The unit commander will suspend processing of the administrative separation action pending the PEB –

* if the Soldier is found physically fit, the administrative separation action will be resumed
* if the Soldier is found physically unfit, the administrative separation action will be abated

    	(4)  Disability processing is inappropriate if the conditions in b(1)(a) and (b) do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent.

   c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  The conditions that subject Soldiers to discharge include the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM.  Abuse of illegal drugs is serious misconduct.

    	(1)	 Action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed, and rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record).
    	
    	(2)  All Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge will be processed for separation.  "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.  The immediate and intermediate commanders will recommend separation or retention.  Recommendations will be made as to characterization of service.  The separation reason in all separations authorized by this paragraph will be "misconduct – abuse of illegal drugs."

    	(3)  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge, if such is merited by the member's overall records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for his administrative discharge should be changed to show he was medically discharged because he did not receive any counselling or disciplinary actions for his misconduct and he was under a doctor's care at the time when he was discharged for drug abuse.  

2.  The evidence of record shows that the applicant's drill sergeant counselled him regarding his wrongful use and possession of illegal drugs and he received NJP for wrongfully using a controlled substance.  Thus, the evidence of record refutes the applicant's contention.

3.  The evidence of record also shows the applicant was referred to an MEB.  The MEB findings indicate that referral of the case to a PEB was warranted.

   a.  The approved MEB proceedings were included in the administrative separation packet.  As such, they were referred to the unit commander and the separation authority.  There is no evidence of record that shows the separation authority directed, in writing, that the applicant be processed through the PDES.

   b.  The evidence of record shows that disability processing is inappropriate if UCMJ action has been initiated or if the Soldier has been medically diagnosed as drug dependent.

   c.  Thus, based on the available evidence of record, the applicant was not entitled to further processing through the PDES and/or medical separation.

4.  The applicant's administrative discharge under the provisions of AR 635-200, chapter 14, for misconduct based on commission of a serious offense (abuse of illegal drugs) was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of discharge directed were both proper and equitable.

5.  Therefore, in view of all of the foregoing, there is an insufficient 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)                                         AR20150004366



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ABCMR Record of Proceedings (cont)                                         AR20150004366



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