BOARD DATE: 7 February 2013 DOCKET NUMBER: AR20120013042 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 an upgrade of his under other than honorable conditions (UOTHC) discharge. 2. The applicant states he believes his UOTHC discharge was unjust. He does not contend that what he did was right; but now he has a son and his discharge is hindering his ability to get a decent job. He knows he messed up but states that everyone deserves a second chance. 3. The applicant provides no additional documentation. CONSIDERATION OF EVIDENCE: 1. On 17 July 2007, the applicant enlisted in the Regular Army. He completed his initial training and he was awarded military occupational specialty 91B (Wheeled Vehicle Mechanic). 2. On 7 December 2009, the applicant underwent urinalysis testing and he was subsequently notified he had tested positive for use of marijuana. 3. The applicant accepted the following nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice (UCMJ): a. 9 December 2009 for failing to go at the prescribed time to his appointed place of duty on three separate dates in November 2009; and b. 20 January 2010 for wrongfully using marijuana between on or about 7 November and 7 December 2009 4. On 9 March 2010, the applicant's company commander notified him that he was intending to take action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14, for misconduct - commission of a serious offense based on his wrongful use and possession of marijuana. The commander recommended the applicant receive a UOTHC discharge. 5. On 11 March 2010, the applicant consulted with counsel concerning his rights. He did not submit a statement. He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving no less than a general, under honorable conditions discharge. The applicant's commander and intermediate commander recommended approval, 6. On 5 April 2010, the separation authority disapproved the applicant's request for a conditional waiver and referred the applicant's case to an administrative separation board. 7. On 19 April 2010, the applicant again consulted with counsel and waived consideration of his case by an administrative separation board. 8. On 23 April 2010, the separation authority, a lieutenant general, approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of a UOTHC discharge. On 17 June 2010, the applicant was discharged accordingly. He completed 2 years, 11 months, and 1 day of creditable active service. 9. On 7 September 2010, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC discharge to a general discharge. On 20 May 2011, the ADRB, after careful review of the applicant's application, military records, and all other available evidence, determined he was properly and equitably discharged. Accordingly, his request for discharge upgrade was denied. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include the commission of a serious offense. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. The misconduct is considered a commission of a serious military or civil offense when 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 UCMJ. b. 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. c. 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. 11. Under the UCMJ, the maximum punishment allowed for violation of Article 112a for wrongful use of marijuana is a punitive discharge and confinement for 2 years. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his UOTHC discharge was unjust. He argues he knows he messed up, but deserves a second chance now that he has a son and needs to get a decent job. 2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 3. The UCMJ authorizes a punitive discharge for the applicant's misconduct. The commander's decision to administratively discharge him resulted in a far lesser punishment and was not unjust or too harsh. 4. Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct renders his service unsatisfactory. 5. Additionally, the ABCMR does not upgrade discharges based solely for the purpose of establishing eligibility for benefits from another agency. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 6. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge. 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) AR20120013042 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120013042 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1