IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100011765 


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 under other than honorable conditions discharge be upgraded to general, under honorable conditions. 

2.  The applicant states his discharge was inequitable because it was based on one isolated incident and did not consider his entire record when making a determination of his service characterization.  He contends:

	a.  that his diagnosis of post traumatic stress disorder (PTSD) was not considered by the separation authority;

	b.  that he was innocent of the accusations of misusing prescription drugs;

	c.  that he was not offered rehabilitation;

	d.  that he was not afforded legal counsel and was not informed of the consequences of the allegations;

	e.  that he was afforded an opportunity to interview with the medical officer who reviewed his medical records;

	f.  that he was never asked, interviewed, or counseled on whether the allegations were true; and

	g.  that he was processed for misconduct without notice of an other than honorable discharge.
3.  The applicant further states that he had completed his service obligation and was retained in the service under stop loss authority, when the allegations were made.  He had attained the rank of staff sergeant and did not have a pattern of misconduct that would have warranted such a characterization of service.  He contends that he would have requested a hearing had he been given legal counsel.  

4.  The applicant states that since his discharge he has completed a nursing program and is now a licensed nurse.  He works on the nursing staff for the Maine Veteran's Homes.  

5.  The applicant provides copies of his Department of Veterans Affairs Rating Decision, dated 9 February 2010 and documents from his previously submitted application to the Army Discharge Review Board.

CONSIDERATION OF EVIDENCE:

1.  On 2 June 2004, the applicant enlisted in the Regular Army as a prior service Soldier for 4 years.  At the time he was a specialist, pay grade E-4.

2.  The applicant was promoted to sergeant, pay grade E-5 on 1 October 2005, and then to staff sergeant, pay grade E-6 on 1 February 2008.

3.  On 14 November 2008, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for commission of serious offenses from May through August 2008.  The commander listed his offenses as the theft and wrongful possession of Adderall, violation of a lawful command to not try and obtain any more Adderall, obstruction of justice, adultery, and bigamy.  The commander informed the applicant of his right to consult with legal counsel, to obtain copies of documents pertaining to the separation action, to request a hearing before an administrative board, to be represented by either or both military and civilian counsel, to waive his rights, and/or to submit request for conditional waivers of any rights.  The commander required him to undergo a complete medical examination and mental status evaluation.  

4.  On 14 November 2008, the applicant acknowledged receipt of the commander's recommendation.  There is no available evidence of the applicant's decision or action regarding his waiving of rights or consulting with counsel.

5.  On 17 November 2008, at a mental status evaluation, the applicant's behavior was found to be normal.  He was fully alert and oriented but displayed a depressed mood.  His thinking process was clear, his thought content normal and his memory good.  The applicant was mentally responsible and had the capacity to understand and partake in proceedings.  Findings included attention deficit hyperactivity disorder (ADHD) and chronic PTSD.

6.  On 29 November 2008, the appropriate authority approved the applicant be issued a discharge under other than honorable conditions.

7.  Accordingly, on 30 December 2008, the applicant was discharged under other than honorable conditions.  He had completed a total of 6 years, 2 months and 23 days of creditable active service.

8.  On 5 August 2009, the Army Discharge Review Board determined that the applicant's discharge was both proper and equitable and denied relief.  In making its determination, the ADBR noted the applicant's college education, overseas service in Iraq, his awards and decorations, and several character reference letters.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

10.  Under the UCMJ, the maximum punishment allowed for wrongful possession of controlled substances is a dishonorable discharge and 5 years confinement; for obstruction of justice is a dishonorable discharge and 5 years confinement; for adultery is a dishonorable discharge and 1 year confinement; and for bigamy, is a dishonorable discharge and 2 years confinement.

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.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

13.  The VA rating decision, provided by the applicant, indicates that he was granted a service connected disability for PTSD rated at 10 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to general, under honorable conditions because it is based on a single incident and did not consider his entire record of service.

2.  The record indicates that his commander based his recommendation on several serious offenses.  The applicant has not acknowledged all of the commander's reasons for his discharge.  Furthermore, he has not provided any documentary evidence or convincing argument sufficient to warrant an upgrade of his discharge.

3.  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.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant’s unsubstantiated claim of good post-service conduct is insufficient to mitigate his misconduct during his military service.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20100011765





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ABCMR Record of Proceedings (cont)                                         AR20100011765



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