RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070005124 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. Dean A. Camarella

Member

Mr. Qawiy A. Sabree

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, correction of item 4a (Grade, Rate, or Rank), of his DD Form 214 (Certificate of Release or Discharge from Active Duty), to show the entry "PFC" (Private First Class), instead of the entry "PV1" (Private), and correction of item 4b (Pay Grade), to show the entry "E3," instead of the entry "E1," and that he be awarded any monetary benefits due to this change.

2.  The applicant states, in effect, on or before 24 January 2004, his rank and pay grade were PFC/E-3.  Due to his Article 15, under the UCMJ (Uniform Code of Military Justice) that was imposed, his rank was reduced to Private/E-1, with a forfeiture of pay of $575.00 pay per month for 2 months, beginning 24 January 2004.  His rank of E-1 was never restored to the rank of PFC/E-3 after 2 months punishment, beginning 24 January 2004, and he never received monetary benefits which he is entitled to.  He was discharged under honorable conditions with a general discharge, on 26 May 2004, which was later upgraded to an honorable discharge, on 22 September 2006.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and several documents from his OMPF (Official Military Personnel File) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 May 2004, the date of his discharge.  The application submitted in this case is dated 26 March 2007.

2.  The applicant's record shows he enlisted in the Regular Army on 16 February 2001.  The applicant successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Leonard Wood, Missouri.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 88M, Motor Transport Operator.  He was advanced to pay grade E-4 on 1 October 2003.

3.  On 3 December 2003, the applicant tested positive for THC (Tetrahydrocannabinol) in his urine.  




4.  On 21 January 2004, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana, a schedule I controlled substance, between 3 November 2003 and on or about 3 December 2003.  His punishment consisted of reduction to pay grade E-1, a forfeiture of $575.00 per month for 2 months, and 45 days restriction and extra duty. 

5.  The applicant elected not to appeal the punishment imposed or to submit additional matters in his own behalf pertinent to his record of nonjudicial punishment.  

6.  On 27 April 2004, the applicant's commander advised the applicant he was taking action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct-abuse of illegal drugs.  His reason was due to the applicant's positive test for marijuana.  He recommended that he receive a general discharge, under honorable conditions.  He informed him that the intermediate commanders and separation authority were not bound by his recommendation as to the characterization of his service.  The separation authority could direct that his service be characterized as honorable or general, under honorable conditions.  He stated that if his recommendation was approved, the proposed separation could result in discharge.  He had the right to consult with counsel.

7.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

8.  On 3 May 2004, the applicant's commander recommended that he be separated from the service, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), misconduct-abuse of illegal drugs, prior to his ETS (expiration of term of service) date.

9.  On 3 May 2004, the applicant’s battalion commander recommended that he be separated from the Army prior to the expiration of his current term of service, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for abuse of illegal drugs.  He recommended that his service be characterized as general, under honorable conditions.

10.  On 4 May 2004, the separation authority approved the recommendation for the applicant's discharge and directed that he be issued a general discharge with his service characterized as under honorable conditions.


11.  The applicant was discharged on 26 May 2004, in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 14, paragraph         14-12c(2), for misconduct-abuse of illegal drugs.  He had completed 3 years, 3 months, and 11 days of creditable service.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his general discharge on 2 September 2005.  The ADRB determined that the characterization of service was too harsh and was inequitable.  On 29 June 2006, the ADRB voted to grant relief in the form of an upgrade of the applicant's discharge to fully honorable.  However, the ADRB determined that the reason for discharge was both proper and equitable and voted not to change it.

13.  Item 4a, of his DD Form 214, shows the entry "PV1;" item 4b, shows the entry “E1:” and item 12h (Effective Date of Pay Grade), shows the entry “2004 01 21” (21 January 2004).  The date entered is the date non-judicial punishment was administered.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 1-3 covers reduction in grade.  It states that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade (per Army Regulation 600-8-19, chapter 7).

15.  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, abuse of illegal drugs, and conviction by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

16.  Paragraph 14-12c(2) provides for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It also provides that individuals identified as first time drug abusers, grades E-5 through E-9, will be processed for separation upon discovery of a drug offense. 




17.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  It also prescribes requirements, policies, limitations, and procedures for: (a) Commanders at all levels imposing nonjudicial punishment; and (b) members on whom this punishment is to be imposed.6

18.  The same regulation states, in pertinent part, that unless otherwise specified in this regulation or if authority to impose nonjudicial punishment has been limited or withheld by a superior commander, any commander is authorized to exercise the disciplinary powers conferred by Article 15, UCMJ.  The term commander, as used in this chapter, means a commissioned or warrant officer who, by virtue of that officer's grade and assignment, exercises primary command authority over a military organization or prescribed territorial area, that under pertinent official directives is recognized as a command.  The term imposing commander refers to the commander or other officer who actually imposes the nonjudicial punishment.
Unless such authority is limited or withheld by superior competent authority, a commander may impose punishment under Article 15, of the UCMJ, on commissioned officers, warrant officers, and other military personnel of a commander's command.

19.  Table 3-1, of the same regulation, pertains to maximum punishment.  It states that an Article 15, under the UCMJ, imposed by a field grade and general officers may reduce a Soldier in the pay grade of E-4 one or more grades.

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant was advanced to pay grade    E-4, effective 1 October 2003.  He received an Article 15, under UCMJ, on 21 January 2004, for wrongfully using marijuana between 3 November 2003 and on or about 3 December 2003.  He was reduced to pay grade E-1 as a result of this action.  He elected not to appeal the punishment imposed or to submit additional matters in his own behalf pertinent to this record of nonjudicial punishment.  

2.  The applicant was discharged under the provisions of Army Regulation     635-200, Chapter 14, paragraph 14-12c(2), for misconduct.  

3.  There is no evidence that the applicant regained promotion status after his reduction.

4.  The applicant's rank and grade at the time of his discharge was and is correct as currently constituted.  Therefore, there is no basis to correct item 4a or 4b, of his DD Form 214.  He is not entitled to any monetary benefits.

5.  The evidence shows that the applicant applied to the ADRB for an upgrade of his discharge.  The ADRB determined that his discharge was too harsh and inequitable.  The ADRB voted to grant full relief in the form of an upgrade of his discharge to a fully honorable discharge.  However, on 29 June 2006, the ADRB determined that the reason for his discharge was both proper and equitable and voted not to change it.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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

__QS____  __DC____  __JCF__  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.




_____Jeffrey C. Redmann____
          CHAIRPERSON




INDEX

CASE ID
AR20070005124
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070920
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20040526
DISCHARGE AUTHORITY
AR 635-200, chapter 14-12c(2)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
129
2.

3.

4.

5.

6.