RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 AUGUST 2006
      DOCKET NUMBER:   AR20060000562


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. James Hastie                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under other than
honorable conditions be upgraded to an honorable discharge.  He also
requests reinstatement of all medical benefits, educational benefits, and
pensions that were lost as a result of his discharge.

2.  The applicant states that the Army failed to provide his medical board
recommendation during his hearing; that bias and inaccurate facts were
presented to the board of officers during his hearing; that the board of
officers rejected his commander's supporting documents; and that he was
reduced to the pay grade of E-5, fined $2,500.00, and assigned 30 days of
extra duty prior to the board proceedings.

3.  The applicant provides in support of his application, 16 letters of
recommendation and/or character references attesting to his good character,
dependability, professionalism, accomplishments, initiative, and leadership
ability, recommending that he be afforded a second chance; letters of
commendation; letters of appreciation; certificates of award;
recommendations for award; a copy of his physical profile; a copies of his
Army medical records; a copy of his Medical Evaluation Board Summary; a
copy of a medical statement from the Deputy Commander for Clinical Services
at Kirk United States Army Health Clinic; a copy of a request of issuance
of a Correction to DD Form 214 (DD Form 215); a copy of a Memorandum for
Record from Headquarters Headquarters Company (HHC), 16th Ordnance
Battalion (ORD BN), 61st Ordnance Brigade, verifying that the applicant was
assigned a physical profile; copies of his Noncommisioned Officers
Evaluation Reports (NCOERs); a copy of his Enlisted Record Brief; a copy of
his discharge packet; and a copy of a Record of Proceedings under Article
15, Uniformed Code of Military Justice (UCMJ).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's discharge under other
than honorable conditions be upgraded to an honorable discharge.

2.  Counsel states that the applicant was denied a fair and impartial
hearing; that the MEB recommendation for discharge was not considered at
the time of his hearing; and that Army officials were generally insensitive
in this matter.  Counsel states that during the chapter 14 proceedings, the
applicant's medical packet should have been submitted for MEB processing,
which did not take place.  He states that aside from an exemplary record,
the applicant's commanding officer and his supervisor have written letters
in support of the applicant as well as testifying on his behalf at various
proceedings.  Counsel goes on to state that the applicant sustained an
injury to his back while he was in Bosnia, and that his condition worsened
until he was assigned a P-3 physical profile.  He states that the
applicant's medical condition has the potential to be expensive in the
future and that a change in the character of his service would restore his
medical and other benefits, which has been earned during his 14.5 years of
service.  Counsel concludes by stating that other soldiers with drug issues
have neither been sanctioned nor separated from the service, unlike the
applicant.

3.  Counsel provides no additional documentation in support of the
applicant's requests.

CONSIDERATION OF EVIDENCE:

1.  A complete copy of the applicant's official military records was not
available for review during the processing of his case.  However, the
available records do show that the applicant enlisted in the Army on 27
November 1990, in the pay grade of E-1.  He successfully completed his
training as a power generator equipment repairer.  He remained on active
duty through a series of reenlistments.

2.  He was promoted to the pay grade of E-2 on 27 May 1991, to pay grade E-
3 on 1 November 1991, to pay grade E-4 on 27 January 1994, to pay grade E-5
on 1 September 1996, and to pay grade E-6 on 1 May 2002.

3.  The NCOERs that he was furnished over his years on active duty show
that his conduct and efficiency ratings were between average and excellent.

4.  The applicant was placed on a temporary profile on 30 November 2004
after he was diagnosed as having a low back disc disorder, which prohibited
him from all types of exercise except running, biking and swimming at his
own pace.  According to his Army medical records the applicant had a
history of prior surgery in 1997 for low back pain.  His screening notes of
acute medical care show that he regularly received cortisone injections in
his back and several additional medications for pain.  His records show
that he was also referred for physical therapy and pain management.

5.  On 21 April 2004, the applicant's commanding officer was notified by
the Criminal Investigation Division that an investigation had been
conducted and that the applicant was the subject of the investigation.  The
notification indicates that the investigation pertained to wrongful
distribution and possession of marijuana, and the United States Government
and the State of Maryland are listed as the victims.  The notification
indicates that the dates of occurrence were 14 January through 15 January
2004, and that the investigation established probable cause to believe that
the applicant sold five ounces of marijuana to undercover police detectives
on two separate occasions.

6.  On 17 May 2004, the applicant was counseled by his commanding officer
regarding the investigation.  His commanding officer stated that it was
brought to her attention on 28 April 2004, that he had been arrested for
manufacturing and distributing marijuana at his home of residence.  During
the counseling session, the commanding officer informed the applicant that
he was being pulled from his duties as an instructor and taken off the duty
roster until further notice.  The applicant was informed that his behavior
was unacceptable and would not be tolerated in the unit and may be
punishable under the UCMJ.  He was also informed that if his conduct
continued, action may be initiated to separate him from the Army under the
provisions of Army Regulation 635-200; that if he was involuntarily
separated, he could receive an honorable, a general, or an other than
honorable discharge.  The applicant was command referred to the Alcohol and
Drug Abuse Prevention and Control Program.  He acknowledged receipt of the
counseling statement and he indicated that he agreed with the information
contained therein.

7.  On 19 July 2004, the applicant was convicted, pursuant to his pleas, by
civil authorities of manufacturing and distributing marijuana.  He was
sentenced to 5 years and 3 months of confinement at the Hartford County
Detention Center, and all except 3 months of his sentence was suspended.
He was placed on 3 years of probation to run concurrent with his sentence.

8.  Nonjudicial punishment was imposed against the applicant on 26 August
2004 for wrongfully manufacturing approximately five ounces of marijuana, a
controlled substance, with intent to distribute the said controlled
substance.  His punishment consisted of a reduction to the pay grade of E-
5, a forfeiture of pay in the amount of $1,000.00 per month for 2 months,
45 days of restriction, and 45 days of extra duty.  The applicant opted not
to demand trial by court-martial or to present matters in his own defense.

9.  On 13 September 2004, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 635-200,
chapter 14, for commission of a serious offense.  The commander cited the
Article 15 that he received on 26 August 2004, for the wrongful
manufacturing of marijuana, a controlled substance, as a basis for the
recommendation for discharge.  His commander informed him that he was being
recommended for a discharge under other than honorable conditions.  The
applicant acknowledged receipt of the notification and he indicated that he
desired consideration of his case by an administrative separation board.

10.  Walter Reed Army Medical Center (WRAMC) Hospital Personal Data Sheet
dated 1 December 2004, shows that the applicant was referred for a full MEB
initiation after declining surgical intervention.

11.  In a memorandum dated 21 January 2005, subject "Letter of Apology",
addressed to the Commander, United States Army Garrison, Aberdeen Proving
Ground, Maryland, the applicant apologized to the United States Army, his
fellow servicemen and his country for his misjudgment and misdeeds during
the year.  In the memorandum he stated that early in 2004, he succumbed to
peer pressure and acting as a conduit, performed a favor of providing
marijuana to a civilian acquaintance he believed to be his friend.  He
stated that on several occasions this friend came uninvited to his
residence asking for that favor, and that initially he refused his request;
but subsequently succumbed and provided him with a small quantity of
marijuana.  He stated that he neither sought the person out nor received
profit from the exchange; that he neither used illicit drugs nor associated
with those who do; that this was purely a poor decision on his part; and
that he was making no excuses for his decision.  The applicant went on to
state that in July 2004, he entered a guilty plea to one count of
distribution of a controlled substance, as he knew that what he did was
wrong and felt that he had to take responsibility for his actions.  He
stated that it was never his intention to disgrace the Army, his family, or
himself; and that as a result of his guilty plea, he received and served a
sentence of 90 days work release and is currently on probation for 3 years.


12.  In the apology memorandum, the applicant stated that he was
additionally punished under the UCMJ in the form of a reduction to the pay
grade of E-5, a forfeiture of pay in the amount of $2,000.00, 45 day of
restriction and 45 days of extra duty.  The applicant stated that he
acknowledged the gravity of his crime and in no way was he trying to
diminish the severity; however, the poor decision that he made is not the
sum of who he is, as he has been a proud member of the Army for 14 years.
He stated that until that incident, his service was exemplary.  He stated
that he served his country in Korea, Germany, and twice in Bosnia and that
he had a desire to continue to serve his country.  He concluded the
memorandum by stating that he has learned the devastating consequences of
what a single foolish action can bring, and the far reaching affects, which
include possible immediate discharge from the Army, personal humiliation,
and immense stress to his wife, son and family.  He requested that he be
allowed the opportunity to go to a MEB so that he could receive treatment
for the injuries he incurred during his 14 years of service, or that he be
allowed to continue his service until he reached his retention control
point.

13.  In an undated memorandum, an attorney representing the applicant
submitted a notification through his chain of command, in which he stated
that the applicant had chosen to submit a conditional waiver of
administrative board proceedings with the understanding that final action
would not be taken until the MEB had been completed, and that if the MEB
findings indicated that referral to a Physical Evaluation Board (PEB) was
warranted, he be allowed to be medically processed.  The request for a
conditional waiver of the administrative separation board was denied on 31
January 2005.

14.  A board of officers convened on 24 February 2005, to determine whether
the applicant should be separated from the Army prior to the expiration of
his term of service.  The applicant appeared before the board and he was
represented by counsel.  During the proceedings, the board considered
numerous testimonies and recommendations from his commanding officer,
senior NCOs, and fellow Soldiers regarding his good character,
dependability, professionalism, accomplishments, initiative, and leadership
ability.  These individuals recommended that he be afforded a second
chance.  However, the board found that the applicant committed a serious
offense and the board recommended that he be discharged from the Army under
the provisions of Army Regulation
635-200, chapter 14-12c, for commission of a serious offense, and that his
service be characterized as under other than honorable conditions.

15.  A medical statement completed by the Deputy Commander for Clinical
Service, Kirk United States Army Health Clinic, dated 24 March 2005,
indicates that the applicant was evaluated at WRAMC.  He indicated that,
according to the attending physician, the applicant was unable to perform
the duties of his military occupational specialty (MOS).  The statement
indicates that according to the applicant's physical profile from WRAMC, he
was unable to perform those duties which would have made him deployable
and, therefore, he may be referred to an MOS Medical Review Board or
referred directly into the MEB/PEB process.

16.  The appropriate authority approved the recommendation for discharge.
Accordingly on 25 March 2005, the applicant was discharged under other than
honorable conditions, under the provisions of Army Regulation 635-200,
chapter 14-12(c)2, for misconduct, commission of a serious offense.  He had
completed 14 years, 3 months and 29 days of net active service.  However,
an administrative error was made during the preparation of the applicant's
Certificate of Release or Discharge (DD Form 214) which resulted in the
character of his service being reflected as honorable.
17.  On 30 March 2005, the Adjutant, United States Army Garrison, Aberdeen
Proving Ground, notified the Commander, United States Army Human Resources
Command, St. Louis, Missouri, that the character of service reflected on
the applicant's DD Form 214 should be corrected to read under other than
honorable conditions, and he requested the issuance of a DD Form 215
(Correction to DD Form 214).

18.  On 21 February 2006, the applicant was furnished a DD Form 215 that
shows the character of his service as under other than honorable
conditions.

19.  The available records fail to show that the applicant ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge.
The ABCMR reviewed this case based on the applicant's request for
reinstatement of his pension.

20.  Army Regulation 635-40 (Physical Evaluation for Retention or
Separation) provides in paragraph 4-3 that an enlisted soldier on whom
elimination action that might result in a discharge under other than
honorable conditions has been started may not be processed for physical
disability processing.  Such a case is to be referred to the officer
exercising general court-martial jurisdiction.  The general court-martial
convening authority (GCMA) may authorize physical disability processing
based only on finding that the disability is the cause or a substantial
contributing cause of the misconduct or when specific circumstances warrant
disability rather than administrative separation.   This authority may not
be delegated.  A copy of the determination must be entered into the case
file when it is forwarded.

21.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The contentions made by the applicant and his counsel have been noted.
However, they are not substantiated by the evidence of record.  The
evidence of record shows that the applicant appeared before a board of
officers represented by counsel, and that the board considered his desire
to submit a conditional waiver of administrative board proceedings with the
understanding that final action would not be taken until the MEB had been
completed.  His request for a conditional waiver was denied on 31 January
2005.

4.  The applicant was not denied due process.  He was properly discharged
in accordance with the applicable regulation and the fact that he was in
the process of being evaluated by an MEB and that he had a desire to be
processed for separation through medical channel, does not substantiate his
contention that he was denied due process.

5.  His request regarding reinstatement of his pension is without merit.
He was not receiving any pension while he was in the Army; therefore, there
is no pension to be reinstated.

6.  The applicant was discharged under other than honorable conditions for
commission of a serious offense.  As a result of the type of discharge that
he received, he is not entitled to medical or educational benefits and
neither he nor his counsel has submitted sufficient evidence to show that
the type of discharge that he received is incorrect.

7.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____JA__  ___DD__  ___JH___  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.





                                  ____James Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000562                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060808                                |
|TYPE OF DISCHARGE       |UOTHC)                                  |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CH 14/MISCONDUCT                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  626  |144.6000/DISCHARGE FOR MISCONDUCT       |
|2.  642                 |144.6115/COMM OF A SERIOUS OFFENSE      |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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