BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090016344 


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 2007 discharge under honorable conditions be upgraded to fully honorable. 

2.  The applicant states he has learned from his mistakes and does not smoke marijuana any more.  He asks for help and states that he attends abstinence support classes every Thursday.

3.  The applicant provides a statement from a Department of Veterans Affairs staff psychiatrist, dated 24 August 2009, indicating the applicant is an active client.  The psychiatrist notes the applicant attends weekly substance abuse classes and that a recent urine drug screen was negative.  

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant enlisted in the Regular Army on 2 June 2004.  

2.  The applicant’s file contains a developmental counseling form indicating he was counseled in August 2005 after testing positive for marijuana during a unit urinalysis.  

3.  Between December 2005 and November 2006 the applicant was deployed to Iraq in support of Operation Iraqi Freedom where he was awarded an Army Commendation Medal and an Army Achievement Medal.  The applicant was serving in pay grade E-3 at the time.
4.  A second developmental counseling form, dated 7 February 2007, notes the applicant again tested positive for marijuana during a unit urinalysis test conducted on or about 24 January 2007.  The applicant was assigned to 
Fort Hood, Texas at the time and was serving in pay grade E-4.

5.  On 14 February 2007, the applicant was reduced to pay grade E-1.  The basis for the reduction is not in the available records.

6.  On 23 April 2007, the applicant’s unit commander notified him that he was initiating action to administratively discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-12c(2) (misconduct-drug abuse).  The commander noted that the basis for the recommendation was the applicant’s wrongful use of a controlled substance on two separate occasions.  The commander indicated he was recommending the applicant’s service be characterized as “general, under honorable conditions.”  The applicant acknowledged receipt of the proposed separation, consulted with counsel, and did not submit a statement in his own behalf.

7.  On 30 April 2007, the appropriate separation authority approved the applicant's discharge and directed the applicant’s service be characterized as “general, under honorable conditions.”  

8.  The applicant was discharged on 10 May 2007 and his service was characterized as under honorable conditions (general).  He had completed 
2 years, 11 months, and 9 days of creditable active Federal service as of that date.

9.  In October 2008, the Army Discharge Review Board denied the applicant’s petition to upgrade the character of his 2007 discharge to fully honorable.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  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 if such is merited by the Soldier’s overall record.

11.  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.  After a careful review of all the available records and the issues and documents he submitted, it was determined the evidence was not sufficient to mitigate the applicant's misconduct and to upgrade his discharge. The applicant, by violating the Army’s policy not to possess or use illegal drugs, compromised the trust and confidence placed in him as a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant knowingly risked his military career and diminished the quality of his service below that meriting a fully honorable discharge.  

2.  The fact that the applicant may now be drug free has been considered.  However, 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.

3.  It is clear that the applicant was discharged from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct by abusing illegal drugs.  The applicant did not provide any evidence which shows that any requirements of law and regulation were not met or that his rights were not fully protected throughout the separation process.  In fact, his receipt of a general discharge rather than a discharge under other than honorable conditions may have been his chain of command's way of acknowledging his commendable service in Iraq and as such were more lenient in his discharge processing than they could have been.

4.  In view of the foregoing, there is no basis for granting the applicant's request

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)                                         AR20090016344



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ABCMR Record of Proceedings (cont)                                         AR20090016344



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