IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100008134 


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 upgrade of his discharge to an honorable discharge.

2.  The applicant states he served his country honorably.  He received a Bachelor of Science degree while in Iraq.  He went through a divorce while overseas.  When he left, his house had a wife and four kids; however, he came back to an empty house.  This affected him in ways he still doesn't understand and he does not understand why he did what he did.  He is trying to make his kids proud of him once again.  An honorable discharge would open more doors.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), which is accepted as an application to this Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 April 2001.  He was trained in and awarded military occupational specialty (MOS) 13P (Multiple Launch Rocket System Operations/Fire Direction Specialist).

2.  A DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for the period ending October 2005 shows the applicant was deployed in support of Operation Iraqi Freedom.  He was given ratings of "successful" and "excellence."  His senior rater recommended his promotion to staff sergeant, commenting that he was an "outstanding leader" and "dedicated, focused, and totally committed NCO" who "exceeds my expectations daily."

3.  A DA Form 4980-5 (Bronze Star Medal (BSM) Certificate) shows the applicant was awarded the BSM for exceptionally meritorious service during the period
28 January 2005 to 28 January 2006.

4.  On 3 March 2006, the applicant's commander was notified the applicant had provided a urine sample that tested positive for cocaine.

5.  On 6 March 2006, the applicant was formally counseled by his commander for wrongfully using cocaine, a violation of Article 112a of the Uniform Code of Military Justice (UCMJ).  His commander informed him he was recommending to the chain of command further administrative action that may include removal from the promotion list, reduction for inefficiency, action under the UCMJ, a bar to reenlistment, and separation from the Service.  His commander further informed him of the types of discharges and their effects.  The applicant acknowledged the counseling with his signature.

6.  On 30 March 2006, the applicant accepted non-judicial punishment (NJP) under Article 15, UCMJ, for wrongful use of cocaine.  His punishment was reduction to specialist (SPC)/E-4, forfeiture of $487 of pay per month for two months (suspended), and extra duty and restriction for 45 days.

7.  On 24 April 2006, the applicant underwent a mental status evaluation which found he met retention standards.

8.  On 3 May 2006, the applicant's commander informed him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations- Active Duty Enlisted Administrative Separations), paragraph
14-12c, for misconduct - commission of a serious offense.

9.  The applicant acknowledged receipt of the notification of intent to initiate separation; he consulted with legal counsel; and he was advised of the basis for the contemplated separation for misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions and that as the result of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived his right to submit statements in his behalf.
10.  On 9 May 2006, the applicant's battalion commander recommended approval of the proposed discharge.  A worksheet attached to the battalion commander's recommendation shows the applicant was pending additional NJP under Article 15, UCMJ, for not reporting to extra duty on 7 May 2006 and missing formation on 8 May 2006.  The record is void of documentation showing any disciplinary action was taken based on this alleged misconduct.

11.  On 16 May 2006, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c with a general discharge.  On 19 May 2006, the applicant was discharged accordingly.  He completed 5 years, 1 month, and 9 days of total active military service.

12.  On 16 October 2009, the Army Discharge Review Board (ADRB) informed the applicant that his request to change the character of and reason for his discharge was denied.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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.  A discharge under other than honorable conditions is normally appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.
Paragraph 14-12c(2) simply says, "Abuse of illegal drugs is serious misconduct."

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his general discharge to an honorable discharge.

2.  The applicant has not provided documentation showing, nor does the evidence of record show, any irregularities in the administrative proceedings against him that led to his discharge or that his rights were not protected throughout the proceedings.

3.  Based on his record of indiscipline, which includes accepting NJP for use of cocaine, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable 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)                                         AR20100008134



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)