IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090014544 


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 proceedings were unfairly applied against him as his unit was ordered to stand down and the personnel were transferred to other units.  The command group that processed his separation gave second chances to its own Soldiers.

3.  In support of his application, the applicant provides copies of eight character reference letters.

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 records show he enlisted in the Delayed Entry Program on 5 April 2002.  He enlisted in the Regular Army in pay grade E-1 on 18 April 2002.  He completed training and was awarded military occupational specialty 14R (line-of-sight-forward heavy crewmember).  He served in Iraq from 27 April 2003 to 12 April 2004.  He was advanced to pay grade E-3 on an unknown date.

3.  On 10 January 2004, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for violation of a lawful order by wrongfully consuming alcohol on 19 December 2003.  His punishment included a reduction to pay grade E-1 (suspended), a forfeiture of $759.00 pay per month for 2 months, and 45 days of extra duty.  He did not appeal the punishment.

4.  On 22 June 2004 and 16 July 2004, the applicant received counseling for failing to report and disobeying a lawful order. 

5.  On 5 August 2004, the applicant was punished under Article 15, UMCJ, for failing to go to his appointed place of duty on 7 and 8 July 2004.  His punishment included a reduction to pay grade E-2 (suspended, to be automatically remitted if not vacated before 20 September 2004), a forfeiture of $348.00 pay, and 14 days of restriction and extra duty.

6.  On 26 August 2004, the suspension of the reduction to pay grade E-2 was vacated based on the applicant's offense of wrongfully using marijuana between on or about 6 June 2004 and 7 July 2004.

7.  On 27 August 2004, the applicant received counseling of his company commander's intent to eliminate him from the service for misconduct.  The applicant acknowledged the proposed action and stated he disagreed with the chapter proceedings.  

8.  On 1 September 2004, the applicant was punished under Article 15, UCMJ, for the wrongful use of marijuana between on or about 6 June 2004 and 7 July 2004.  His punishment included a reduction to pay grade E-1, a forfeiture of $596.00 pay per month for 2 months (suspended, to be automatically remitted if not vacated before 1 December 2004), and 45 days of restriction and extra duty. 
He did not appeal the punishment.  He was reduced to pay grade E-1 on 1 September 2004.

9.  On 9 September 2004, a flagging action was initiated against the applicant to eliminate him from the service.

10.  On 15 September 2004, the company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), paragraph 14-12c, for commission of a serious offense.  He advised the applicant that he was recommending that he be separated because he had violated a general order by consuming alcohol while deployed to Iraq, had wrongfully used marijuana, and failed to go to his appointed place of duty on four separate dates.  He also advised the applicant of his rights and that he was recommending he receive a general discharge under honorable conditions.

11.  On 21 September 2004, the applicant, after consulting with counsel, acknowledged receipt of the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, and the rights available to him.  He also acknowledged that he might receive a general discharge.  He elected to submit a statement in his own behalf.

12.  In a statement, dated 21 September 2004, the applicant stated, in effect, that he did not want to get out of the Army.  He had made a few mistakes in his life that he was not proud of and he had learned from his mistakes.  He failed one drug test on 7 July 2004 and was also punished for drinking a beer off duty in Iraq.  He also requested, in effect, that he be able to continue in the Army and be a Soldier.

13.  On 24 September 2004, the battalion commander recommended the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.

14.  On 1 October 2004, the appropriate separation authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.

15.  On 17 November 2004, the applicant was discharged from active duty in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense with a general discharge under honorable conditions.  He was credited with completing 2 years and 7 months of net active service.

16.  On 15 June 2006, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

17.  The applicant submitted copies of eight character reference letters attesting to his valuable work as a safety officer.  None of these statements recommend an upgrade of the applicant's discharge.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.

19.  Paragraph 14-12c(2)(a) of that regulation also provided for the separation of Soldiers for the commission of a serious offense such as the abuse of illegal drugs.  A single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

20.  Army Regulation 635-200, paragraph 3-7a, further provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change to his general discharge under honorable conditions.  While serving in the pay grades of E-3 and E-2, he accepted punishment under Article 15, UCMJ, for wrongfully consuming alcohol, failing to go to his appointed place of duty, and wrongfully using marijuana.

2.  At the time of the applicant's discharge, the issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, it appears that the applicant's overall record was taken into consideration by the separation authority when it directed he receive a general under honorable conditions discharge.  The evidence shows his misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.

3.  The applicant has provided no evidence to show that his discharge was unjust.  Without evidence to the contrary, it appears 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.  He was properly separated for misconduct - commission of a serious offense.

4.  The documentation submitted in support of his application was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of an upgrade of his general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general discharge.

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)                                         AR20090014544



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ABCMR Record of Proceedings (cont)                                         AR20090014544



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