IN THE CASE OF:	

		BOARD DATE:	  	  10 March 2009

		DOCKET NUMBER:  AR20080015002 


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, a change to the narrative reason and character of service of his discharge.

2.  The applicant states, in effect, that his 2 years and 6 months of military service was one of the most rewarding experiences in his life.

     a.  The applicant states he completed advanced individual training, developed skills in the culinary arts, and became a positive Soldier performing duty at the dining facility while assigned to Company A, 710th Main Support Battalion,
10th Mountain Division (Light Infantry), Fort Drum, New York.  He adds that he enrolled in ServSafe training to become more proficient in food service, received a certificate of training, and the dining facility manager recommended him for deployment to West Point on a support mission to represent the Division Support Command (DISCOM).

     b.  The applicant states he served in Afghanistan in the Global War on Terrorism and understands the discipline required of young men and women devoting their lives to their country.  He adds that the smudge on his record for misconduct stems from his use of marijuana once at his permanent duty station and again in Afghanistan, which are low points in his military career and he regrets his actions.

 

    c.  The applicant states he maintained a positive attitude during his military service and, despite his under other than honorable conditions discharge, he still has the desire to serve the public and he is doing so today.  He concludes by requesting that the Board favorably consider a change to the narrative reason and character of service of his discharge.

3.  The applicant provides a self-authored statement, undated; and ITT Technical Institute, ITT Educational Services, Inc., letter, dated 24 May 2008.

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's military personnel records show he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 12 February 2000 in the Delayed Entry Program (DEP).  He was discharged from the DEP and enlisted in the Regular Army and entered active duty for a period of 3 years on 18 February 2000.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 92G (Food Service).  The applicant served in Afghanistan in support of Operation Enduring Freedom from 10 January 2002 to 10 May 2002. 

3.  The applicant’s military personnel records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 20 February 2001.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for wrongfully using marijuana at an unknown location, between on or about 11 December 2000 and on or about 11 January 2001, in violation of Article 112a, UCMJ.  On 5 March 2001, the applicant indicated that he did not demand trial by court-martial; however, he requested a closed hearing in the Article 15 proceedings; a person 


to speak in his behalf; and indicated that matters in defense, mitigation, and/or extenuation would be presented in person.  On 5 March 2001, following a closed hearing where all matters presented in defense, mitigation, and/or extenuation were considered, the battalion commander imposed the punishment of reduction to private (PV1)/E-1, that part in excess of reduction to private (PV2)/E-2 suspended, to be automatically remitted if not vacated before 5 September 2001; forfeiture of $482.00 pay per month for 2 months; extra duty for 45 days; restriction for 45 days; and an oral reprimand.  The applicant was also advised of his right to appeal the Article 15 action within 5 calendar days.  On 5 March 2001, the applicant indicated, in effect, that he did not desire to appeal the UCMJ action.

4.  The applicant’s military personnel records contain a DA Form 2627, dated
30 May 2002.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for wrongfully using hashish at an unknown location, between on or about 21 March and 21 April 2002, in violation of Article 112a, UCMJ, and for wrongfully using hashish at an unknown location, between on or about 20 February and 20 March 2002; in violation of Article 112a, UCMJ.  On 4 June 2002, the applicant indicated that he did not demand trial by court-martial; however, he requested a closed hearing in the Article 15 proceedings; a person to speak in his behalf; and indicated that matters in defense, mitigation, and/or extenuation would be presented in person.  On 4 June 2002, following a closed hearing where all matters presented in defense, mitigation, and/or extenuation were considered, the battalion commander imposed the punishment of reduction to PV1/E-1; forfeiture of $552.00 pay per month for 2 months; extra duty for 45 days; restriction for
45 days; and an oral reprimand.  The applicant was also advised of his right to appeal the Article 15 action within 5 calendar days.  On 11 June 2002, the applicant indicated that he did not desire to appeal the UCMJ action.

5.  On 12 June 2002, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c, for commission of a serious offense.  The reasons for the proposed separation action were, between on or about 21 March and on or about 21 April 2002, the applicant wrongfully used hashish, and between on or about 20 February and on or about 20 March 2002, he wrongfully used hashish, these violations resulted in a Field Grade Article 15; and between on or about 11 December 2000 and on or about 11 January 2001, he wrongfully used marijuana, this violation resulted in a Field Grade Article 15.  


The commander stated that he was recommending the applicant receive a characterization of service of under other than honorable conditions.  The applicant was also advised of his rights.  The commander’s recommendation included, in pertinent part, a copy of Headquarters Company, 10th Division Support Command, 10th Mountain Division (Light Infantry), Fort Drum, Memorandum for Record, dated 30 May 2002, subject:  Chapter of [Applicant’s Rank, Name, and Social Security Number].  This document shows that the applicant’s company commander outlined the record of events leading up to his recommendation that the applicant be separated from the Army.  This document also shows, in pertinent part, that the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP); that he completed his ADAPCP requirement; and that the following months passed without incident, but the applicant again tested positive for marijuana use.

6.  On 13 June 2002, the applicant requested and consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant elected to submit statements in his own behalf which he did submit.

7.  On 13 June 2002, the company commander reviewed the applicant’s statement of options and choices pertaining to the rights available to him and, based on the circumstances surrounding the applicant’s case, the company commander recommended the applicant be separated from the U.S. Army prior to expiration term of service (ETS) under the provisions of Army Regulation
635-200, chapter 14, paragraph 14-12c.  The commander also stated the applicant did not have the potential for useful service under conditions of full mobilization.  The company commander recommended approval of the separation action and that the applicant’s term of service be characterized as under other than honorable conditions.

8.  On 13 June 2002, the battalion commander reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense.  He also recommended waiver of the rehabilitative requirements and that the applicant’s service be characterized as under other than honorable conditions.

9.  On 17 June 2002, the DISCOM commander reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army prior to ETS under the provisions of Army Regulation 635-200, chapter 14, 
paragraph 14-12c, for commission of a serious offense.  She also recommended waiver of the rehabilitative requirements and that the applicant’s service be characterized as under other than honorable conditions.

10.  On 25 June 2002, the brigadier general serving as the General Court-Martial Convening Authority and the authorized separation authority in the applicant’s case, approved the recommendation for separation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense.  The separation authority waived the rehabilitative requirements of Army Regulation 635-200, paragraph 1-16, and directed the applicant be discharged under other than honorable conditions.  The separation authority also determined the applicant had no potential for useful service under the conditions of full mobilization and directed the applicant not be transferred to the Individual Ready Reserve.  Accordingly, the applicant was discharged on 28 June 2002.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation confirms he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), based on misconduct, with separation code “JKK.”  At the time of his discharge the applicant had completed 2 years,
4 months, and 11 days of net active service during the period of service under review.

12.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

13.  The applicant’s military personnel records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 21 August 2002, that shows the applicant requested upgrade of his under other than honorable conditions discharge to an honorable discharge.  On 18 December 2002, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined the applicant’s discharge was proper and equitable and voted not to change the characterization of his service.  The applicant was notified of the ADRB’s decision on 20 December 2002.

14.  In support of his application, the applicant provides, in pertinent part, a copy of an ITT Technical Institute, ITT Educational Services, Inc., letter, dated 24 May 2008.  This document shows that Dr. Rachid B______, Chair, School of Drafting 


and Design, provided his personal reference of the applicant in support of his application for a Computer-aided Design (CAD) Operator position.  Dr. B______ states, in pertinent part, that he has known the applicant for approximately two years as an undergraduate student in the ITT Technical Institute; attests to the fact that the applicant is an intelligent, articulate, dedicated, and hard working student with very high standards; and he highly recommends him for a CAD Operator position.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKK” as the appropriate code to assign RA enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, paragraph 14-12c(2), based upon misconduct.

16.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  This document shows, in pertinent part, that 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 or an honorable discharge, if such is merited by the Soldier's overall record.

17.  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.  

18.  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, in effect, that the character of service of his discharge should be upgraded and the narrative reason changed because, with the exception of the smudge of misconduct on his record stemming from his use of marijuana and hashish, he always maintained a positive attitude as a Soldier, was dedicated to his job, and he has a strong desire to serve the public.

2.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on a serious offense was proper and equitable and in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid.  Therefore, the applicant is not entitled to a change to the narrative reason for his discharge.

3.  The applicant’s record of service shows completion of only 2 years, 4 months, and 11 days of his 3-year enlistment and also documents acts of indiscipline involving the commission of serious offenses on three occasions for which nonjudicial punishment was imposed on two occasions during the period of service under review.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

4.  The applicant's post-service conduct, personal achievements, and desire to serve the public were also carefully considered.  The applicant’s good post- service conduct and achievements are commendable, but not so meritorious as to warrant an upgrade of his discharge.




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 this requirement.

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
      
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)                                         AR20080015002



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ABCMR Record of Proceedings (cont)                                         AR20080015002



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