IN THE CASE OF:	  

		BOARD DATE:	6 July 2010  

		DOCKET NUMBER:  AR20090021856 


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 his general discharge be upgraded to an honorable discharge.

2.  The applicant states after several attempts to rejoin the Army, he was told by a recruiter in order to rejoin he needed his discharge upgraded.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Delayed Entry Program on 13 January 2003.  He enlisted in the Regular Army in pay grade E-1 on 4 March 2003.  He completed training and was awarded military occupational specialty 91W (Health Care Specialist).  He was promoted to pay grade E-4 on 1 March 2005.  

2.  On 19 May 2005, a U.S. Army Criminal Investigation Command Report of Investigation pertaining to the applicant was forwarded to his organization for information and action deemed appropriate to be taken against the applicant for wrongful possession and use of marijuana.

3.  On 26 May 2005, the applicant was counseled for a positive urinalysis.  

4.  On 1 August 2005, the applicant was punished under Article 15, Uniform Code of Military Justice, for the wrongful use of marijuana between 18 March and 18 April 2005.  His punishment included a reduction to pay grade E-3, a forfeiture of $723.00 pay (suspended to be automatically remitted if not vacated before
27 January 2006), and 45 days of extra duty and restriction.  He did not appeal the punishment.  The applicant was reduced to pay grade E-3 on the same date.

5.  In two letters dated 30 September and 5 October 2005 the applicant stated he was aware that what he did was wrong and he asked for a second chance.  

6.  On 27 October 2005, 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 (wrongful use of marijuana) with a general discharge.  The applicant was also advised of his rights.

7.  On 27 October 2005, 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 not to submit a statement in his own behalf.

8.  In five letters to the applicant’s battalion commander, five service members attested the applicant had shown himself to be an exemplary Soldier, an asset to the medical platoon, and it would be a mistake to separate him from the Army.

9.  On 9 November 2005, the battalion commander recommended the applicant be separated under the provisions of Army Regulation 635-200, paragraph
14-12c, with a general discharge.

10.  On 15 November 2005, the appropriate separation authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.

11.  The applicant was discharged from active duty in pay grade E-3 on 30 December 2005, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for Misconduct (Drug Abuse), with a general discharge under honorable conditions.  He was credited with completing 2 years, 9 months, and 27 days of net active service.  Item 27 shows a reentry (RE) Code of "4." 

12.  On 7 May 2008, the Army Discharge Review Board (ADRB) granted partial relief in the form of a change to the narrative reason for separation to Secretarial Authority and to change the RE Code to 3.  The ADRB determined that the characterization of service was both proper and equitable and voted not to change it.

13.  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.

14.  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.

15.  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.

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve.  The regulation provides that prior to discharge or release from active duty, individuals will be assigned RE Codes based on their service records or the reason for discharge.  Chapter 3 specifies that RE-4 applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE Code 
of 4 are ineligible for enlistment.  RE-3 applies to persons separated with a waiveable disqualification.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change of his general discharge under honorable conditions.  While serving in the pay grade E-4, he accepted punishment under Article 15, UCMJ for 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 the applicant's overall record was taken into consideration by the separation authority when it was directed that he receive a general discharge under honorable conditions.  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 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 have jeopardized his rights.  He was properly separated for misconduct - commission of a serious offense.

4.  On 7 May 2008, the ADRB granted the applicant partial relief by changing the narrative reason for separation to Secretarial Authority and the RE Code to 3, which is a waivable disqualification for enlistment.  It is noted the ADRB determined his characterization of his service was proper and equitable and denied relief.

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)                                         AR20090021856



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ABCMR Record of Proceedings (cont)                                         AR20090021856



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