IN THE CASE OF:	  

	BOARD DATE:	  01 July 2008

	DOCKET NUMBER:  AR20080006275 


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 that his general discharge be upgraded to an honorable discharge. 

2.  The applicant states that his discharge should be upgraded to fully honorable because he never received any formal counseling and there is no record of counseling that exists. 

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 14 March 1963 and enlisted in the United States Army Reserve (USAR) under the delayed entry program (DEP) on 8 January 1981 for a period of 6 years.  He enlisted in the Regular Army on 28 July 1982 for a period of 4 years, training in the administration career management field and assignment to Hawaii.  He completed his training and was transferred to Hawaii, where he served a 2-year tour before being transferred to Fort Bragg, North Carolina. 

2.  On 15 June 1984, the applicant’s commander notified him that he was disapproving the award of the Good Conduct Medal to the applicant due to the applicant’s apprehension for shoplifting in Hawaii in 1984, prior to arriving at Fort Bragg and his recent apprehension for possession and use of marijuana and resisting arrest on 13 June 1984.  The applicant elected not to submit matters in his own behalf.    
3.  On 26 July 1985, the applicant was honorably released from active duty (REFRAD) in the pay grade of E-4 due to the expiration of his term of service.  He was transferred to a USAR Troop Program Unit in Greensboro, North Carolina.  He reenlisted on 5 May 1988 for a period of 6 years and he remained in the USAR through continuous reenlistments.  He was promoted to the pay grade of E-6 on 2 October 1995.  

4.  The applicant received a general officer memorandum of reprimand (GOMOR) on 15 January 2001 for misconduct based on his testing positive for the use of illegal drugs (cocaine and marijuana) during a command directed urinalysis conducted on 30 April 1999.  The imposing commander advised the applicant that he would consider any matters raised in rebuttal before he made his decision on the filing of the GOMOR in the applicant’s records.  The applicant did not acknowledge the reprimand or submit a rebuttal and the commander directed that the GOMOR be filed permanently in the applicant’s OMPF.  

5.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records; however, there are duly authenticated orders filed in his records that show that the applicant was discharged under honorable conditions on 15 January 2001 under the provisions of Army Regulation 135-178, chapter 7.

6.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 21 October 2005.  He contended at that time that he had been counseled and advised by his Army Reserve commander and unit to accept the discharge and wait for 2 years to request a discharge and since he was an above average Soldier, they would accept him back.  He went on to state that he was desperate to resume his military career.  The ADRB found his discharge to be both proper and equitable and denied his request for an upgrade on 12 January 2007.

7.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel in the Army Reserve and Army National Guard.  Chapter 7 of this regulation defines misconduct by reason of one or more of the following: minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (to include abuse of illegal drugs), and conviction by civil authority.  The service of a Soldier discharged for reasons indicated in paragraph 7 will normally be characterized under other than honorable conditions.  If warranted by the Soldier’s overall record, a characterization of service under honorable conditions may be furnished.



8.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.

9.  Paragraph 3-7 also 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.

10.  Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program) provides, in pertinent part, in paragraph 9-6, that commanders will use a General Counseling form to refer Soldiers to community-based counseling and rehabilitative services.  Upon receipt of the counseling form, it is the responsibility of the Soldier to seek counseling and/or rehabilitation.  Failure to seek Army approved counseling and treatment or to complete rehabilitation may result in consideration for separation under the provisions of Army Regulation 135-178.   

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to show otherwise, it must be presumed that the applicant’s administrative separation was accomplished in accordance with the applicable laws and regulations in effect at the time with no procedural errors which would tend to jeopardize his rights.  

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.
   
3.  The applicant’s contentions have been considered; however, they are not sufficiently mitigating to warrant relief when compared to his rank and time in service at the time of his misconduct.  The applicant violated the trust and confidence placed in him as a noncommissioned officer and leader and therefore his service simply does not rise to the level of an honorable discharge.




4.  The applicant’s contention that his discharge should be upgraded because he did not receive formal counseling has been considered and found to lack merit.  The applicant was only required to be counseled on a general counseling form that was to be given to him and the responsibility to seek the treatment for his drug use rested with him.  Therefore, if he was counseled, he would have received the counseling form.  Accordingly, the fact that he states that there is no record of counseling has no merit because he would have received it.  Additionally, the applicant has failed to show through the evidence submitted with his application and the evidence of record that he was not properly counseled and processed for separation.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080006275



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ABCMR Record of Proceedings (cont)                                         AR20080006275



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