IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100012984 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states he did not fail the standard Army urinalysis test.  He failed a Department of Social Services hair follicle examination for drugs.  Those test results were given to the U.S. Army Criminal Investigation Command and subsequently used by the Army to discharge him.  

3.  The applicant did not provide any documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 January 2005.

2.  Section III (Service Data) of the applicant's Enlisted Record Brief shows the following record of promotions and reductions:

* private (E-2) – 13 July 2005
* private first class (E-3) – 1 November 2005
* specialist (E-4) – 1 September 2006
* private (E-1) – 14 December 2007

3.  A review of his personnel records shows he served in Afghanistan with Company A, 1st Battalion, 32nd Infantry Regiment, in support of Operation Enduring Freedom VII from 3 March 2006 to 11 June 2007.

4.  On 15 November 2007, he underwent a mental status evaluation wherein he stated he was motivated for rehabilitation.  The military physician stated the applicant had significant depressive and anxiety symptoms related to family and job issues.  These resulted in difficulty functioning as an active duty Soldier in the Army.  He diagnosed the applicant with an adjustment disorder.  An adjustment disorder involves the development of emotional or behavioral symptoms in response to an identifiable stressor that are in excess of what would be expected and that cause significant impairment in social and/or occupational functioning.  The applicant was found mentally responsible for his behavior, able to distinguish right from wrong, and possessed sufficient mental capacity to participate in administrative proceedings.  He was psychologically cleared for administrative separation.

5.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment on 14 December 2007 for the wrongful use of cocaine.

6.  On 10 January 2008, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c for commission of a serious offense with a general under honorable conditions discharge.  The specific reason was for the wrongful use of cocaine.

7.  On the same date he acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, he completed his election of rights by requesting military counsel and to submit statements in his own behalf.

8.  In his statement he acknowledges his drug use was wrong and not acceptable in the military.  However, the stress of losing his child for alleged maltreatment, losing his vehicle, possibly his wife, and now his job have made him feel like his whole life was going down the drain.  He was working with the Child Protective Service to regain custody of his child and attending parenting group therapy sessions on a weekly basis.  Further, he was enrolled in a drug rehabilitation 

program and had passed all the mandatory drug tests.  He requested to be retained in the Army to complete his treatment and prove he was a better Soldier.  Further, he asked that his deployment time be considered and that he be allowed the opportunity to prove to the chain of command that he could be the same trusted, respected, professional Soldier he was while he was deployed.

9.  The approval authority directed that he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct for drug use with a general under honorable conditions discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged on 11 February 2008, he held the rank/grade PV1/E-1, and he completed a total of 3 years and 29 days of active military service.

10.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the Purple Heart, Army Commendation Medal, National Defense Service Medal, Afghanistan Campaign Medal, Army Service Ribbon, Overseas Service Ribbon, North Atlantic Treaty Organization Medal, and Combat Infantryman Badge.

11.  On 28 December 2009, the Army Discharge Review Board disapproved the applicant's request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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, conviction by civil authorities, desertion, or absences 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.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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 applicant contends that his general discharge should be upgraded because he did not fail the standard Army urinalysis test.

2.  His service record shows he received nonjudicial punishment for improper use of cocaine.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The evidence of record shows he received numerous awards for service in a combat zone, to include a Purple Heart, and his advancement to specialist (E-4) during his period service.  These factors most likely contributed to his receipt of a general under honorable conditions discharge rather than a discharge under other than honorable conditions which is normal for discharges for misconduct.

4.  The applicant contends he was discharged using the results from a drug test administered by the Department of Social Services and not the Army; however, he provides no evidence to support his claim.  In fact, in his statement submitted with his discharge packet he admits to drug use and acknowledges that his actions were unacceptable.  Although there is insufficient evidence to grant the relief requested, this by no means diminishes the applicant's dedicated service to and sacrifices for a grateful Nation.

5.  In view of the foregoing, his 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)                                         AR20100012984



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ABCMR Record of Proceedings (cont)                                         AR20100012984



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