ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170014298 APPLICANT REQUESTS: a reconsideration of his previous request to change his under other than honorable conditions discharge to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Case separation file FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100025097 on 14 April 2011. 2. The applicant states, in effect, he had never been written up nor received any reprimands. Following his injury in 2005, he was hospitalized and prescribed pain medication, but he was not referred to pain management. He further states, at the time, he relapsed to drug use. He was being processed for a medical discharge. It was not until then that he was offered the pain management program. Processing of his medical discharge was stopped, and he was offered a general discharge. Once he received his DD Form 214, he realized that it was not as agreed upon, he received an under other than honorable discharge. 3. Review of the applicant's service records show: a. He entered active duty on 24 March 2005. b. On 10 July 2006, the applicant's command was notified of the applicant's urine specimen testing positive during a unit urinalysis collected on 20 June 2006 for cocaine and marijuana (COC/THC). c. On 18 August 2006, the applicant accepted nonjudicial punishment (NJP) for wrongfully using marijuana between on or about 21 May 2006 and 20 June 2005 (sic) a. and for wrongfully using cocaine between 14 and 20 June 2006. He was reduced to the grade of private/E-1. d. Military Police Report (MPR) #xxxxx-2006-MPC033-1, dated 22 November 2006, indicates the applicant was arrested for driving under the influence and disregarding traffic control device on 18 October 2006. A supplemental report, dated 20 November 2006 revealed that the applicant was found guilty of the previous offenses and sentenced to 30 days confinement (26 suspended). e. On 5 December 2006, the applicant received a general memorandum of reprimand for driving under the influence (DUI) of alcohol and being found guilty of the DUI. f. On 30 January 2007, the command was notified of the applicant's urine specimen testing positive during a unit urinalysis collected on 16 January 2007 for THC. g. On 23 March 2007, the applicant accepted NJP for wrongfully using marijuana between 16 December 2006 and 16 January 2007. h. On 7 January 2008, the command was notified of the applicant's urine specimen testing positive during a unit urinalysis collected on 15 December 2008 for THC. i. MPR # xxxxx-2008-MPC033, dated 16 December 2008, revealed the Fort Campbell Police responded and found marijuana and paraphernalia in the applicant's personal area, which he shared with another Soldier. He was apprehended and transported to the Fort Campbell Police Station for processing. j. The applicant's duty status changed as follows: * from present for duty (PDY) to absent without leave (AWOL), effective 21 August 2007 * AWOL to dropped from rolls (DFR), effective 9 September 2007 * DFR to civilian confinement, effective 28 August 2008 * Civilian confinement to PDY, effective 3 September 2008 k. On 29 September 2008, the applicant accepted NJP for absenting himself from his unit without authority from 21 August 2007 until 3 September 2008. l. On 20 January 2009, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 14-12c(2) of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) due to misconduct-abuse of illegal drugs. m. The applicant acknowledged receipt of the commander's intent to separate him on 20 January 2009. He consulted with legal counsel who advised him of the basis for a. the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * 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 a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded n. On 6 March 2009, the separation authority approved the applicant's discharge under the provisions of paragraph 14-12c(2) of AR 635-200, with his service characterized as under other than honorable conditions. The applicant was discharged accordingly on 13 March 2009. o. His DD Form 214 confirms he was discharged for misconduct (drug abuse), Separation Code JKK, under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as under other than honorable conditions. He completed 2 years, 9 months, and 21 days of active service. He had lost time from 17 October 2006 to 9 December 2006 and from 22 August 2007 to 27 August 2008. 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 10 June 2011. The ADRB determined the discharge was both proper and equitable and voted to deny relief. 5. On 28 September 2017, the Army Review Boards Clinical Psychologist, was asked to determine if there is a nexus between the information/diagnoses contained in the documentation and the misconduct that resulted in the applicant's discharge. Based on the information provided by the Board and review of available records, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 6. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) 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. 7. By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than 1. honorable conditions is normally appropriate for a Soldier discharged under this chapter. Soldiers separated under Army Regulation (AR) 635-200, paragraph 14-12c(2), misconduct (drug abuse), are assigned the Separation Code JKK. The RE Code associated with this Separation Code is RE-4. 8. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board found insufficient evidence to show an error, injustice or justification to make a change to the narrative reason for reason. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 5/13/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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. c. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) 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. It provides for medical evaluation boards, which 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 qualifications for retention based on the criteria prescribed in AR 40-501, which governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 4. 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 1. member who has less than 20 years of service and a disability rating at less than 30 percent.