IN THE CASE OF:	  

		BOARD DATE:	       19 August 2008

		DOCKET NUMBER:  AR20080008459 


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 under honorable conditions discharge be upgraded to honorable.

2.  The applicant states that his discharge was inequitable because it was based on one incident in 23 months of meritorious service.  There were never any other options or services offered to him for his substance use other than discharge. Due to the type of discharge and the previous mistake on his DD Form 214 (Certificate of Release or Discharge from Active Duty), for his service in Iraq, he has been disqualified from any and all services from the Department of Veterans Affairs (including the free two years medical services for Iraq veterans).

3.  The applicant provides his DD Form 214 with a DD Form 215 (Correction to DD Form 214); his prior DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U. S. Code, Section 1552), which had been provided to and considered by the Army Discharge Review Board (ADRB); an Army Commendation Medal certificate/orders; two Certificates of Achievement; and a Michigan Veterans Foundation, Inc. Discharge and Assessment Summary.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 August 2003.  He completed basic training and advanced individual training and was awarded military occupational specialty 92G (Food Service Specialist).

2.  The applicant served in Iraq from 9 February 2004 through 7 July 2004.

3.  A DA Form 4856 (Developmental Counseling Form), date of counseling       13 April 2005, shows the applicant was counseled for testing positive on a urinalysis on 29 March 2005 for marijuana and methamphetamine use.

4.  On 21 April 2005, the applicant received a mental status evaluation.  He was found to have the capacity to understand and participate in proceedings and to be mentally responsible.

5.  On 27 April 2005, the applicant completed a separation physical examination and was found qualified for separation.

6.  On 17 May 2005, the applicant’s commander initiated separation proceedings under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  He cited the applicant’s positive urinalysis for marijuana and recommended the applicant be discharged with a general under honorable conditions discharge.

7.  On 21 June 2005, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He was afforded the opportunity to submit a statement but declined to do so.

8.  The appropriate commander approved the recommendation to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed he receive a general discharge under honorable conditions.

9.  On 12 July 2005, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct – abuse of illegal drugs.  He had completed 1 year, 10 months, and 14 days of creditable active service and had no lost time.  

10.  On 14 March 2007, the applicant’s DD Form 214 was administratively corrected to show his service in Iraq and to add the Army Commendation Medal.

11.  On 28 January 2008, the ADRB determined that the applicant’s discharge was both proper and equitable and voted not to upgrade his discharge.

12.  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.  Paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate under this chapter.

13.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  Army Regulation 600-85 prescribes policies and procedures needed to implement and operate the Army Substance Abuse Program (ASAP).  In pertinent part, it states that identification of a drug or alcohol abuser is accomplished through a variety of methods, including voluntary (self) identification.  Voluntary (self) identification is the most desirable method of discovering alcohol or other drug abuse.  The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek treatment and rehabilitation.  The regulation also states that unit commanders retain their authority to make personnel decisions except that initiation of administrative separation is mandatory for all Soldiers identified as illegal drug abusers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was inequitable because it was based on one incident in 23 months of meritorious service has been carefully considered.  Because the applicant was an experienced Soldier he knew the Army’s policy on the use of illegal drugs; basically, zero tolerance.  It appears that he used not only marijuana but also methamphetamine.

2.  The applicant also contended that there were never any other options or services offered to him for his substance use other than discharge.  However he was free at any time to refer himself to the local ASAP office.  

3.  The applicant’s administrative discharge from service was accomplished in accordance with applicable laws and regulations in effect at the time of his separation.  He could have received a discharge under other than honorable 

conditions.  It appears his command took into account his prior good service and his service in Iraq.  The type of discharge he was given was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.




      _______ _xxxx______   ___
               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)                                         AR20080008459





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ABCMR Record of Proceedings (cont)                                         AR20080008459



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