IN THE CASE OF:	 

		BOARD DATE:	  12 November 2008

		DOCKET NUMBER:  AR20080011837 


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, in effect, that his Article 15 dated 5 May 2004 be set aside, that his rank of specialist, E-4, be restored, and that all rights and privileges be restored.  He also requests, in effect, that his narrative reason for separation be changed to fulfillment of service. 

2.  The applicant states that he was found by his doctor at the Department of Veterans Affairs (VA) to be suffering from chronic post-traumatic stress disorder (PTSD).  He feels he was not mentally stable when the incident occurred.

3.  The applicant provides two VA Progress Notes, one dated 23 February 2006 and one dated 3 May 2007.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the Regular Army on 31 January 2002.  He completed basic training and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  On 21 October 2002, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully using marijuana between on or about 29 August 2002 and on or about 29 September 2002.  His punishment was a reduction from private, E-2, to private, E-1; a forfeiture of $556.00 pay per month for 2 months (suspended until 19 April 2003); extra duty for 45 days; and restriction for 45 days.

4.  The applicant arrived in Kuwait/Iraq on 28 March 2003.

5.  The applicant's Enlisted Record Brief shows he was advanced to specialist, 
E-4, on 1 January 2004. 

6.  The applicant departed Kuwait/Iraq on 15 January 2004.

7.  On 5 May 2004, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, imposed by his field-grade commander, for wrongfully using marijuana on or about 18 March 2004.  His punishment was a forfeiture of $669.00 pay per month for 2 months; a reduction to private, E-2; extra duty for 45 days; and restriction for 45 days.

8.  On 21 May 2004, the applicant completed a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible and was psychiatrically cleared for any action deemed appropriate by his command.

9.  On 1 June 2004, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct, commission of a serious offense (specifically, for testing positive on two separate occasions for the use of illegal drugs).  The applicant acknowledged the action and was advised of his right to consult with counsel.

10.  On 1 June 2004, the applicant’s commander formally recommended he be separated under the provisions of Army Regulation 635-200, paragraph 14-12c.  This recommendation noted that the applicant’s highest grade held was private first class, E-3 (promoted on 31 January 2003).

11.  The appropriate authority approved the recommendation to discharge the applicant and directed he be furnished a general under honorable conditions discharge.
12.  On 14 July 2004, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2), with a narrative reason for separation of "MISCONDUCT."  He had completed 2 years, 5 months, and 14 days of creditable active federal service and had no lost time.

13.  On 21 June 2006, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to fully honorable and changed his narrative reason for separation to Secretarial Authority.  The ADRB found that his discharge was now inequitable based on the overall length and quality of his service, to include his combat service and his PTSD diagnosis.

14.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment if punishment is appropriate.

15.  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.  Paragraph 14-12c(2) states that Soldiers are subject to separation for commission of a serious offense and that abuse of illegal drugs is serious misconduct. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was found to be suffering from chronic PTSD and that he felt he was not mentally stable when the incident occurred have been carefully considered.

2.  It is acknowledged that the applicant served in Iraq and that his reduction to private, E-2, for the illegal use of marijuana occurred shortly after he departed Iraq.

3.  However, it is also noted that before he went to Iraq he accepted nonjudicial punishment for using marijuana.  Therefore, there is reasonable doubt that his second use of marijuana was the result of PTSD instead of merely a continuation of his earlier, non-combat-related behavior.

4.  The nonjudicial punishment proceedings were conducted in accordance with applicable law and regulations; the punishment imposed was within legal limits; and the record of proceedings (DA Form 2627) is properly on file.  In the absence of extraordinary circumstances there is a reluctance to substitute the Board's judgment for that of the commander who was on the scene on the question of guilt and punishment.

5.  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.  The applicant did not complete his term of service; therefore, it would not be appropriate to correct his records to show he did so.  However, the ADRB determined that his narrative reason for separation should be changed to read Secretarial Authority and his DD Form 214 (Certificate of Release or Discharge from Active Duty) has been re-issued to list this as his narrative reason for separation.

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.



      ________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)                                         AR20080011837



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011837



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1