BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001243 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001243 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001243 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 her under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, in effect: a. She was discharged for drug abuse. The error is that she was prescribed medication by an Army doctor. She was given oxycodone for pain for a service-connected injury that occurred while she was in the performance of her duties while on active duty. Her unit did not take this into account when they separated her from active duty. b. Since being released from active duty, she has led an exemplary life. She completed a drug treatment program while on active duty and has not been involved with any illegal drugs since that time. She attempted to provide medical statements showing that oxycodone will read as cocaine on a drug test; however, she was denied the chance to continue serving her country. c. Along with her physical impairments, she also has mental issues that have caused a gap in her ability to complete tasks in a timely manner. She has been productive as a volunteer and in education in an attempt to improve herself and her community. 3. The applicant provides: * a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 March 2009 * medical documents from 17 September 2007 through 21 September 2016 * Saint Louis University, School of Public Health, Training Program records * two letters from the United Service Organization (USO) * two Salvation Army volunteer identification (ID) cards * a letter of support, dated 26 November 2015 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 Regular Army on 18 May 2007. She completed initial entry training and was awarded military occupational specialty 52D (Power Generator Equipment Repairer). Following the completion of her initial entry training, she was assigned, on or about 13 November 2007, to the 583rd Forward Support Company, 3rd Battalion, 321st Field Artillery Regiment, 82nd Airborne Division, Fort Bragg, NC. 3. The applicant accepted nonjudicial punishment (NJP), under Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. On 27 May 2008, for violating Article 134 of the UCMJ; specifically, for wrongfully modifying a DD Form 689 (Sick Call Slip) to show she was restricted to quarters for a period of 48 hours, on or about 28 April 2008. b. On 6 November 2008, for violating Article 112a of the UCMJ; specifically, for wrongfully using cocaine between on or about 5 September 2008 and 8 September 2008. 4. The applicant's immediate commander notified her on 9 December 2008 of his intent to initiate separation actions against her, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12(c), for misconduct – abuse of illegal drugs. As reasons for this action, the commander cited the applicant's NJP for testing positive for wrongful use of cocaine and altering a sick slip. The commander indicated he was recommending the applicant receive a UOTHC discharge. On the same date, the applicant acknowledged receipt of the notification memorandum. 5. The applicant consulted with legal counsel on 16 December 2008. 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 available to her. She did not submit a statement in her own behalf and acknowledged that: * she could expect to encounter substantial prejudice in civilian life if issued a less than honorable discharge * if her discharge was less than honorable, she could make application to the Army Discharge Review Board (ADRB) or ABCMR for an upgrade * an act of consideration by the ADRB or the ABCMR did not imply that her discharge would be upgraded 6. On 15 January 2009, the separation authority disapproved the applicant's request to waive her right to an administrative separation board conditioned upon her receiving a under honorable conditions discharge. 7. On 26 February 2009, the applicant consulted with counsel and was advised of the impact of the discharge action. Subsequently, she voluntary waived consideration of her case by an administrative separation board. 8. On 15 March 2009, the separation authority waived further rehabilitative efforts and approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense. The separation authority directed the applicant receive a UOTHC discharge. 9. The applicant was discharged on 27 March 2009. Her DD Form 214 confirms she was separated for misconduct (drug abuse). 10. The applicant's record is void of evidence that shows she was enrolled in an Army substance abuse program. Her record is also void of evidence that shows she reported or was treated for a behavioral health condition. 11. The ADRB denied the applicant's request for a discharge upgrade on 13 April 2011, stating the discharge was proper and equitable. 12. The applicant provides: a. Medical documents: (1) Two prescription information sheets that are not dated; however, they show the applicant's name and prescriptions for oxycodone/APAP (Percocet), and diazepam (valium EQ). (2) A chronological record of medical care, dated 3 April 2008 (prior to receiving NJP) that shows she was diagnosed or received treatment for the following: * nicotine dependence; tobacco use * osteoporosis * upper respiratory infection * shin splints; fitting of adjustment device - brace * superficial burns to the neck (first degree) * counseling; patient education – medication * screening visits for venereal disease and mental/developmental disorders * plantar keratoma – left * anomalies of cervix, vagina, and external female genitalia (3) Medical treatments and self-reported physical concerns addressed with medical examiners after her period of service. b. A training program record from Saint Louis University that shows she completed 24 lessons. c. Letters from the USO thanking her for her volunteer service and Salvation Army volunteer ID cards. d. A letter of support from a friend who says the applicant is loving and caring, and will try to help anyone she can. 13.  In the processing of this case, an advisory opinion was obtained on 3 January 2017 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The advisory official noted and opined: a. Limited review of Department of Veterans Affairs (VA) records through the Joint Legacy Viewer (JLV) shows 31 problems; however, no VA listed problems. b. The available records do not reasonably support the existence of post-traumatic stress disorder (PTSD) or another behavioral-health condition that warranted separation through medical channels. c. The applicant met medical retention standards for left foot pain, history of shin splints, chronic low back pain, history of plantar keratoma (left), osteopenia (did not meet criteria for diagnosis of osteoporosis), and history of vulvar cyst in accordance with Army Regulation 40-501 (Standards of Medical Fitness) that were applicable to her era of service. Other conditions include cocaine abuse and nicotine dependence. d. The applicant's medical conditions were duly considered during medical separation processing. Note: cocaine metabolites are distinct from metabolites of Percocet. e. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge. 14. The applicant was provided a copy of the advisory opinion on 4 January 2017, to provide her an opportunity to comment and/or submit a rebuttal. She responded on 7 February 2017 with the self-authored statement, which states, in effect: a. She made uphill changes in her life. She served her country while being in service and continue to do so as a volunteer at the USO as much as possible. She has gone to Saint Louis University, and provided copies of her school activities. In her opinion, she is worthy of an upgrade. She is in hope of starting a ministry of her own within the next few years to help service members. b. At this time, she can no longer endure the shame, blame and nerve racking accusation of why she is not entitled to any VA medical benefits. So, once more, she asks for a better discharge, so she may be able to continue to enhance her way of living and able herself to get all the medical help needed. She is also in serious need of marriage counseling due to her PTSD. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. 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 UOTHC 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. DISCUSSION: 1. The applicant's request for an upgrade of her UOTHC discharge to under honorable conditions (general), was carefully considered. She contends her unit did not consider that she was prescribed oxycodone before discharging her from the Army. 2. The applicant's DD Form 214 shows she was separated under the provisions of Army Regulation 635-200, chapter 14-12c, by reason of misconduct – drug abuse. 3. The applicant received NJP for falsifying a sick slip and later for testing positive for cocaine during a urinalysis. Subsequent to the positive drug test, her commander initiated separation proceedings. She contends her prescription for oxycodone was not taken into account. 4. An ARBA advisory official noted cocaine metabolites are distinct from metabolites of oxycodone/Percocet. Therefore, the positive test result of cocaine use was accurate. In addition, she did not demand trial by court-martial or request an appeal when issued NJP for the positive illegal drug use test result. 5. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized her rights. The evidence of record shows she consulted with counsel and was advised of the basis for the separation action. Based on her record of misconduct, her service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The UOTHC characterization of service she received was commensurate with the reason for her discharge. 6. The applicant's continued professional development and volunteering within the community are noted by the Board. However, post-service accomplishments are not normally a basis for upgrading a discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001243 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2