RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20060017856 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that his general discharge be upgraded to an honorable discharge.

2.  The applicant states that many people are discharged from the Army for various reasons.  He did not intend to get out of the Army on purpose, but his actions were inexcusable.  He made a huge mistake and he cannot take it back.  He learned a lot from the men and women he served with and he feels he was an asset to the Army minus the drug issue.  He is enrolled at Johnson and Wales University and holds a 3.16 GPA.  With an upgrade to his discharge he would be able to apply for the Montgomery GI Bill (MGIB), which he believes he is still entitled too.  Congress passed the MGIB and stated that anyone who does not receive an honorable discharge is not eligible for the MGIB.  He would like an upgrade to an honorable discharge.

3.  The applicant provides a copy of his separation document (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 31 July 2001.  He completed the necessary training and was awarded the military occupational specialty 91W (Health Care Specialist).

2.  Between 16 July 2002 and 24 May 2003, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of three controlled substances:  tortdol, nubaine, and tramadol.  

3.  On 27 July 2004, charges were preferred against the applicant for wrongful use of cocaine.

4.  On 9 August 2004, the applicant was convicted by a summary court-martial of one specification for wrongful use of cocaine.  His punishment consisted of reduction to pay grade E-1, forfeiture of $786.00, and confinement for 30 days.

5.  On 22 September 2004, the applicant's commander recommended that the applicant be separated under the provisions of Army Regulation  
635-200 (Personnel Separations), paragraph 14-12c, commission of a serious offense for wrongful use of cocaine, nubaine, and tramadol.  The commander 
further states he does not consider it feasible or appropriate to accomplish other disposition because the applicant is a repeated drug offender and clearly shows no desire to rehabilitate himself.

6.  On 28 September 2004, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for commission of a serious offense, under the provision of Army Regulation 635-200, Chapter 14-12c and its effect, of his rights available to him, and the effects of any action taken by him in waiving his rights.  He understood that he was entitled to have his case considered by an administrative separation board if he had six or more years of active or reserve service at the time of separation or was being considered for a separation under other than honorable conditions.  The applicant submitted no statement on his own behalf, waived personal appearance before an administrative separation board, and waived representation by counsel. 

7.  He also indicated that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued and he understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State Laws.  He may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Conditions Discharge.

8.  On 4 October 2004, the recommendation for separation was approved by the appropriate authority.

9.  On 25 October 2004, the applicant was given a General Discharge Certificate for misconduct-commission of a serious offense.  He had completed a total of 3 years, 2 months, and 25 days of Net Active Service This Period.

10.  The applicant applied to the Army Discharge Review Board (ADRB) on 
14 July 2005.  On 26 April 2006, the ADRB reviewed the applicant's record and determined that his discharge was proper and equitable and denied relief.

11.  Army Regulation 635-200 (Personnel Separations), currently in effect, 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 serious offense, conviction by civil authorities, desertion, or absences without leave.  Individuals in pay grades E-5 and above 
must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second 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.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.

2.  However, his discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for a general discharge for misconduct.  The evidence shows that applicant was a repeat offender.

3.  The applicant’s contention that he did not intend to get out of the Army on purpose, his actions were inexcusable, he made a huge mistake that he cannot take it back, he is enrolled at Johnson and Wales University and holds a  
3.16 GPA, is noted.  However, his statement is not sufficient to mitigate a properly issued discharge.

4.  As for MGIB benefits, the ABCMR does not correct properly executed discharges solely for the purpose of making the applicant eligible for veterans or other benefits.
5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, he is not entitled to an honorable 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


ABCMR Record of Proceedings (cont)                                         AR20060017856



5


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508