IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20080018302 


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 under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, he gave 110 percent while he was in the military and his request to upgrade his discharge to honorable is to try and save what he earned as a Soldier.  He maintains that he was deployed twice to Iraq and assisted with numerous tasks and missions.  The applicant offers that he loved being a Soldier and begged to remain in the service.  He adds that one mistake cost him so much.

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 17 January 2002.  He was trained in and awarded military occupational specialty 21E (Heavy Construction Equipment Operator).

2.  On 26 June 2004, the applicant was awarded the Army Commendation Medal (ARCOM) for his service in support of Operation Iraqi Freedom from
5 September to 12 December 2003.



3.  On 16 July 2004, the applicant received a General Officer Memorandum of Reprimand for driving while impaired.  The reprimand stated that on 31 May 2004, a breath analysis test administered at the time of the applicant's arrest established his blood alcohol content was .14 percent.

4.  On 19 August 2004, nonjudicial punishment was imposed against the applicant for wrongfully using methamphetamines between 7 June and 7 July 2004.  His punishment consisted of reduction to the grade of E-1, a forfeiture of $596.00 pay for 2 months, 45 days of restriction (suspended), and 45 days of extra duty.

5.  On 20 October 2004, the applicant underwent a mental status evaluation that psychiatrically cleared him for any administrative action and or training deemed appropriate by the command.

6.  On 23 November 2004, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, commission of a serious offense, for wrongful use of methamphetamines.

7.  On 23 November 2004, the applicant acknowledged receipt of the discharge action.  

8.  On 24 November 2004, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, and its effects and the rights available to him, the applicant elected to submit a statement on his behalf.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records (ABCMR) for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

9.  A copy of the applicant's statement is not contained in his Official Military Personnel File (OMPF).  

10.  On 6 December 2004, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense – wrongful use of a controlled substance, (methamphetamines).  He directed that the applicant be furnished a General Discharge Certificate.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged on 23 December 2004 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct with a characterization of service of general, under honorable conditions.  The applicant was credited with completing 2 years, 11 months, and 7 days of active service.  

12.  There are no documents in the applicant's OMPF that shows two deployments to Iraq.

13.  On 3 April 2007, the applicant appealed to the ADRB for an upgrade of his discharge.  The ADRB denied the applicant’s appeal, on 10 April 2008, determining he was properly and equitably discharged.

14.  Army Regulation 635-200 (Active Duty Enlisted Administration Separations), sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-3 states that an under other than honorable discharge certificate is normally appropriate for a member who is discharged for acts and patterns of misconduct.

15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was deployed to Iraq twice; however, only one of the periods of deployment could be verified.  Nevertheless, the fact that the applicant received a general discharge instead of an under other than honorable conditions discharge is an indication that the separation authority, more than likely, considered the applicant's entire period of service prior to rendering the general discharge. 

2.  The available evidence confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.  

3.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  The applicant must provide evidence to prove that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  The applicant has failed to provide such evidence.

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)                                         AR20080018302



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ABCMR Record of Proceedings (cont)                                         AR20080018302



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