BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150006179 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: 20 September 2016 DOCKET NUMBER: AR20150006179 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: 20 September 2016 DOCKET NUMBER: AR20150006179 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 item 28 (Narrative Reason for Separation) and item 27 (Reentry (RE) Code) on his DD Form 214 (Certificate of Release from Active Duty). 2. The applicant states: a. he was chaptered out of the Army as a drug rehabilitation failure and understands he did not follow the rules pertaining to marijuana; b. a captain from the Army Substance Abuse Program (ASAP) told him he could get a prescription for medical marijuana if he was in a state where it was legal; c. while he did not reside in a state that legalized the use of medical marijuana, he self-medicated because it helped him with his broken back, incurred during basic training, as well as depression from finding his wife in bed with another man upon his return home from Iraq in 2008; d. he sustained a broken back injury during basic training that the Army never diagnosed, and he had back pain throughout his military service though he passed every Army Physical Fitness Test (APFT); e. the Department of Veteran Affairs (VA) discovered his broken back after his discharge through a Magnetic Resonance Imaging (MRI) that confirmed he sustained a compression fracture to his L1 and T2 and for which, at the very least, he should have received a medical discharge; and f. a change to his RE Code so he can reenlist or join a police department. When he applies for jobs the reason for his separation is a deterrent even though he has a Criminal Justice degree. 3. The applicant provides: * VA Letter dated 15 July 2015 * VA Form 10-5345 (Request for Authorization to Release Medical Records or Health Information) * 187 pages of post-medical records 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 26 April 2007. Upon completion of initial entry training, he was awarded military occupational specialty (MOS) 94F (Computer Detection Systems Repairer). 3. The applicant’s record shows members of his chain of command formally counseled him twelve times during the period 18 March 2008 to 12 June 2009 for a myriad of disciplinary infractions that include: * failure to repair (5 times, 3 of which he did not report to physical training) * issuance of a "No Contact Order" to avoid domestic violence * domestic violence occurrence * command recommendation for temporary residence (barracks) * full understanding of protective order issued * initiation of suspension of favorable personnel actions (flag) * substandard performance for potential separation * debt avoidance 4. During each of his formal counseling sessions, the applicant had an opportunity to provide a rebuttal statement and indicate his concurrence or nonoccurrence with its contents. He authenticated each counseling form with his signature, indicating he agreed with its contents, and did not provide any rebuttal statements. 5. Based upon a request from his unit commander, the clinical director for the Fort Campbell ASAP provided a memorandum, dated 18 May 2009, which states: * the applicant was referred to ASAP due to a positive result for cannabis on a unit urine drug screen * he was diagnosed with cannabis dependence and alcohol abuse * he was required to attend 30 outpatient treatment sessions in a group setting and told not to us cannabis or alcohol while in treatment * the applicant subsequently tested positive for cannabinoids on five urine drug screens between 3 to 22 April 2009 * the applicant requested inpatient hospitalization and was admitted to Lincoln Trails Treatment Center on 1 May 2009 due to his inability to abstinence from marijuana, his extreme mood swings, and severe agitation * on 5 May 2009, the applicant was discharged at his own request against the recommendation of the treatment team * the applicant did not participate in the recommended treatment in both an inpatient and outpatient setting, he was oppositional and defiant * Soldiers who fail to participate or respond successfully to rehabilitation will be processed for administration separation and not provided another opportunity for rehabilitation except under the most extraordinary circumstances as determined by the clinic director with the unit commander 6. On 12 June 2009, the applicant underwent a behavioral health evaluation: * his behavior and thought content were normal * he was fully alert and oriented * his mood was unremarkable * his thinking process was clear * his memory was good * he was mentally responsible * he met retention requirements * he had the mental capacity to understand and participate in separation proceedings * he was diagnosed in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM IV) as follows – o Axis I: Cannabis Dependence o Axis II: Antisocial Personality Disorder o Axis III: none reported at the time 7. The applicant's record is void of any medical treatment records or other documents that indicate he was treated for a disabling medical or mental condition during his active duty service other than cannabis dependence and alcohol dependence previously noted. 8. On 22 July 2009, the commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9, for alcohol or other drug rehabilitation failure. He indicated he received a letter from ASAP declaring the applicant a failure from their program. The commander recommended he receive a general, under honorable conditions discharge (GD). 9. On 23 July 2009, having been advised of the basis for the contemplated separation action and of the effects of a general discharge, the applicant waived his right to consultation by counsel and to submit a statement in his own behalf. 10. On 28 July 2009, the separation authority approved the unit commander?s recommendation for discharge and directed issuance of a GD certificate. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty on 20 August 2009 and lists in: * Item 26 (Separation Code) – "JPC" * Item 27 (RE Code) – "4" * Item 28 (Narrative Reason for Separation) – "Drug Rehabilitation Failure" 11. On or about 18 March 2011, the Army Discharge Review Board (ADRB) approved the applicant’s request for a change in the character of his discharge from a GD to an honorable discharge (HD) because the government introduced the results of a biochemical test that was part of his ASAP treatment plan. Use of this information mandates award of a fully HD. However, the board determined the record fully supported the reason for his discharge and voted not to change it. Subsequent to this decision, a new DD Form 214 was issued showing his characterization of service as honorable. 12. The applicant provided 187 pages of post service medical records documenting the medical treatment he received from on or about 26 September 2009 through 16 March 2015 by the VA and private sources. He did not provide a VA rating decision nor was one found in the VA medical records he did provide. Concerning his back injury pages 7 and 8 of his VA records document his clinical history of "chronic pain since fall in military" and provides the following related findings: a. spine thoracic – thoracic vertebral body heights and alignment are maintained. Intervertebral disc height are maintained. No focal osseous lesion. The conclusion reveals no abnormalities were identified. b. lumbosacral spine – lumbar vertebral bodies reveal slight anterior wedging of the L1 vertebral body, compatible mild compression fracture of indeterminate age. Intervertebral discs reveal heights to be maintained. No evidence of spondylolysis or focal osseous lesions. The conclusion revealed ?mild L1 compression fracture, age indeterminate; a minor abnormality." 13. On 2 October 2015, a psychiatrist with the U.S. Army Medical Department (AMEDD) Activity, reviewed medical documents provided by the applicant as well as his service electronic medical record to determine if the applicant should have entered the Physical Disability Evaluation System (PDES). a. On 15 November 2007, he was diagnosed with adjustment disorder and admitted use of cannabis. b. On 29 October 2008 while deployed in Iraq, he was seen for depression, suicidal ideation and homicidal ideation. He reported nightmares from a home robbery and two suicide attempts prior to his entry on active duty. He was diagnosed with post-traumatic stress disorder (PTSD) due to a personal history prior to entry onto active duty and adjustment disorder. c. On 13 October 2008, he was seen again and was more agitated, irritable and angry. No change in diagnoses. d. From 4 December 2008 to August 2009, he was enrolled in ASAP. e. He was hospitalized from 9 to 12 February 2009 because he threated his wife with a gun while he was intoxicated. His diagnoses were adjustment disorder with anxiety, depressed mood, alcohol and cannabis abuse. He was prescribed medication. f. From 1 May to 5 May 2009, he was an inpatient at a rehabilitation treatment center. It was noted by medical personnel that he was oppositional and defiant. g. On 6 May and 12 June 2009 he was screened for PTSD but it he did not meet the medical diagnostic criteria. h. Based on the applicant?s history, his primary difficulty was his substance abuse and domestic violence issues. It is not possible to determine the extent of his behavioral health conditions due to the substance abuse and dependence disorders. The presence of sobriety for 6 months is required to determine if there is a pathological clinical picture. His mental status evaluations do not document the presence of a behavioral health condition other than polysubstance abuse and cannabis dependence. i. The advisory official opined the applicant should not have been evaluated by PDES prior to his administrative separation. 14. On 14 October 2015, an ABCMR staff member forwarded the applicant a copy of this advisory opinion for his comments or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who enrolled in the ASAP for alcohol or other drug abuse may be separated because of the inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Initiation of separation proceedings is required for Soldiers designated as alcohol and or other drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions. 2. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR). Table 3-1 included a list of the RA RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible unless a waiver is granted * RE-4 applies to Soldiers who are separated from their last period of service with a non-waivable disqualification. They are ineligible for enlistment 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of, separation from active duty. The SPD Code of "JPC" is the correct code for Soldiers separated under the provisions of Army Regulation 635-200, chapter 9, by reason of "drug/alcohol rehabilitation failure." 4. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. This cross reference table applicable at the time of his discharge shows the SPD code and a corresponding RE code. The SPD code of "JPC" has a corresponding RE code of "4." 5. Army Regulation 600-85 (The Army Substance Abuse Program) defines the Limited Use Policy. The objectives of the Limited Use Policy are to facilitate the identification of Soldiers who abuse alcohol and other drugs by encouraging identification through self-referral to facilitate the rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention. When applied properly, the Limited Use Policy does not conflict with the Army’s mission or standards of discipline. It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action. Limited use information includes information such as a Soldier's self-referral to a substance abuse program, drug use revealed in the course of emergency medical care, and drug and alcohol test results obtained voluntarily from a Soldier as part of initial entry into a treatment program. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 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 his or her office, grade, rank, or rating. Chapter 4 provides guidance on referring Soldiers for evaluation to a medical evaluation board (MEB) when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 7. Army Regulation 40-501 (Medical Fitness Standards) provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a physical evaluation board (PEB). Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in AR 635-40. The PEB will make the determination of fitness or unfitness. DISCUSSION: 1. The applicant?s evidence of record clearly shows he had an extensive disciplinary history for multiple infractions. Often his infractions, such as domestic violence, were attributed to intoxication. He was diagnosed with cannabis dependence, alcohol dependence, and antisocial personality disorder. He was enrolled in the ASAP and then voluntary requested inpatient treatment at a rehabilitation center. Within 5 days he discharged himself against the recommendation of his medical providers who found him oppositional and defiant. He was declared a drug and alcohol rehabilitation failure by the ASAP clinic director. His chain of command recommended his separation and he was discharged accordingly. 2. The ADRB reviewed his discharge and determined that introduction of a positive urinalysis while he was enrolled in the ASAP violated the limited use policy, which required correction of his record to show he received an honorable characterization of service. However, the ADRB did not change his reason for separation as it was supported by the evidence and it was proper and equitable. 3. The applicant’s narrative reason for separation and corresponding separation and RE codes were assigned based on the fact that he was discharged for being a drug rehabilitation failure. Absent his rehabilitation failure, there was no fundamental reason for his chain of command to initiate this specific separation action. The underlying reason for his discharge was his rehabilitation failure. The only valid narrative reason for separation permitted under that paragraph is "drug rehabilitation failure" and the corresponding SPD and RE codes are "JPC" and "4," respectively. 4. After a thorough review of his service medical records and the medical evidence he provided, an AMEDD psychiatrist determined the applicant had no mental or physical conditions that would have warranted his processing through the PDES. The psychiatrist opined the applicant would require a minimum of 6 months of sobriety before it could be determined if he had an unfitting behavioral health condition warranting entry into the PDES. 5. Concerning his statement that he broke his back while on active duty, there is no evidence to support his contention such as eye-witness statements, hospital records, clinic treatment records or a line of duty report documenting the incident/accident. While his VA medical records do show a slight anterior wedging of the L1 vertebral body compatible with a mild compression fracture of indeterminate age, this evidence is inclusive to show that he should have entered the PDES. It appears this injury did not limit his ability to perform his soldierly and military occupational duties while on active duty. There is no record of a permanent profile limiting his physical duty performance. By regulation a physical impairment does not, of itself, justify entrance into the PDES for a determination of unfitness with potential for a medical separation or retirement. As he was able to perform his duties to include the APFT, it appears at the time of his separation he was fit for duty with no regulatory requirement to enter the PDES. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006179 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006179 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2