IN THE CASE OF:	  

		BOARD DATE:	    16 February 2011

		DOCKET NUMBER:  AR20100018341 


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 general discharge to honorable and change of his narrative reason for separation.

2.  The applicant states:

* his discharge should be upgraded because he has service-connected Post Traumatic Stress Disorder (PTSD) from his service in Iraq
* in December 2004, during his first deployment, his vehicle was directly hit by an improvised explosive device [IED]; he did not seek medical care/assistance; and he did not let it affect him at the time
* during his last deployment in Iraq a captain threw a hand grenade "in the wrong direction" which landed very close to him
* he returned from this 15-month deployment a completely different person
* he turned to marijuana to help him relax
* he received an Article 15 and he was discharged from the Army
* during an appointment for the chapter 14 processing he was asked if he thought he had PTSD and he said no because he was a combat Soldier and PTSD is a weakness
* after his discharge he was unemployed for a while but he found a job where he worked for 6 months until his boss started to get the best of him
* he went to a Department of Veterans Affairs (DVA) hospital because he was battling the demons inside his head
* he applied for his VA disability


3.  The applicant provides:

* a DVA Rating Decision, dated 20 November 2009
* a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* two DA Forms 638 (Recommendation for Award)
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 June 1999 and he was awarded military occupational specialty 63D (artillery mechanic).  A DD Form 4856 (Developmental Counseling Form), dated 4 March 2004, shows he was counseled for a positive urinalysis for marijuana on 18 February 2004.  

2.  Records at the Defense Finance and Accounting Service show the applicant received hostile fire/imminent danger pay for the period 17 March 1004 through 17 March 2005.

3.  He was honorably discharged on 8 February 2005 for immediate reenlistment.  He reenlisted on 9 February 2005 for a period of 4 years.  He attained the rank of sergeant.  His DD Form 214 shows he served in Iraq from 4 October 2006 to 
18 December 2007.

4.  On 15 April 2008, nonjudicial punishment (NJP) was imposed against the applicant for using marijuana.

5.  On 18 April 2008, he underwent a mental status evaluation and he was found mentally responsible.  

6.  On 28 May 2008, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c for misconduct (commission of a serious offense).

7.  On 28 May 2008, he consulted with counsel and waived his rights.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued and he further acknowledged that as the result of the issuance of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.  He also elected to submit a statement in his own behalf; however, his statement is not available for review.

8.  On 10 June 2008, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) and directed the issuance of a general discharge.

9.  On 30 June 2008, he was discharged accordingly.  He had completed 9 years and 8 days of creditable active service.

10.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12c(2)."  Item 
26 (Separation Code) of his DD Form 214 shows the entry "JKK."  Item 
28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "MISCONDUCT (DRUG ABUSE)."

11.  The applicant provided DVA documentation which shows he was granted service-connection for PTSD (70 percent (%)) effective 8 July 2009.

12.  On 4 September 2009, the Army Discharge Review Board denied his request for an honorable discharge.

13.  Army Regulation 635-200 (Personnel Separations) 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, and convictions by civil authorities.  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 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code JKK is Misconduct (Drug Abuse) and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(2).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends after he returned from his deployment he turned to marijuana to relax.  However, evidence shows he had a positive urinalysis for marijuana on his first enlistment.  It appears he was a drug abuser even before his first deployment to Operation Iraqi Freedom.

2.  The applicant's contention his discharge should be changed to honorable because he has service connected PTSD was noted.  However, prior to his discharge he underwent a mental status evaluation and was found mentally responsible.  No evidence shows he was having mental problems prior to his discharge that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.  

3.  His record of service during his last enlistment included one NJP for using marijuana.  The applicant was a sergeant.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is insufficient evidence to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  His narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for granting the applicant's request to change his narrative reason for separation. 

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)                                         AR20100018341



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ABCMR Record of Proceedings (cont)                                         AR20100018341



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