BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110000569 


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, in effect, an upgrade of his general discharge and correction of his narrative reason for separation.  

2.  The applicant states, in effect:

	a.  He joined the Army in 2002 and he was a natural leader with the utmost integrity.  He did not do drugs, he was singled out by his chain of command, denied a fair trial, wrongfully set up for drug use, and wrongfully discharged from the Army.  

	b.  His section got together to report an abusive member of his unit.  He was singled out because he was the leader of the group.  The situation escalated to the Office of the Inspector General (IG) and the 82nd Airborne Division Commanding General.  Their leadership abandoned them, their meals were restricted, and they received mass punishment.  He did not see his wife for 
2 years because they were assigned to different duty stations.  He wrote his Congressman and he was notified an investigation was taking place.  However, when his commander responded to the Congressman he stated the applicant had a grudge against his supervisor, his performance was poor, and he made a reference to the applicant's weight.  

    c.  Within weeks of his unit receiving the letter from his Congressman, a urinalysis was given and he was called in and told he failed the test.  Those Soldiers who got caught using cocaine or driving under the influence were mostly slapped on the wrist.  But he was accused of using marijuana and given a court-martial.  

    d.  He was denied a fair trial, legal assistance, and denied a proper appeal.  The paperwork states he voluntarily waived the right to legal assistance, but that is not true.  His appointed attorney told him he (the attorney) did not believe him so he walked out on the attorney after he was told the attorney would not argue his case.

	e.  Since he has been out of the Army he has been a great help to his community.  He has done hours of volunteer work.  However, he has been out of the military over 4 years and he cannot get a decent job.

3.  The applicant provides two letters and a DA Form 3349 (Physical Profile).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 9 October 2002 and he held military occupational specialty 92G (Food Service Specialist).  He was awarded the National Defense Service Medal, Global War on Terrorism Service Medal, Humanitarian Service Medal, Army Service Ribbon, and the Parachutist Badge. 

2.  On 17 April 2006, at Fort Bragg, NC, he participated in a command urinalysis and his urine tested positive for marijuana.

3.  On 1 June 2006, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, by reason of misconduct - commission of a serious offense.  Specifically, he cited the applicant's positive test for marijuana use on the 17 April 2006 urinalysis and recommended that the applicant receive an under other than honorable conditions discharge.

4.  On 1 June 2006, the applicant acknowledged receipt of the commander's intent to separate him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  On the same date, he submitted a request to waive his right to an administrative separation board in exchange for the issuance of a General Discharge Certificate.

5.  He further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.  

6.  On 5 June 2006, he was convicted by a summary court-martial of one specification of the use of marijuana between 18 March and 17 April 2006.  The court sentenced him to confinement for 30 days, a forfeiture of $840.00 pay, and reduction to private/E-1.  The sentence was approved by the convening authority on the same date.

7.  The DD Form 2329 (Record of Trial by Summary Court-Martial), dated 5 June 2006, indicates the applicant did not object to trial by a summary court-martial and he was not represented by counsel.  It also shows he was advised of the right to request that his confinement be deferred, the right to submit written matters to the convening authority, including a request for clemency, and of the right to request a review by the Judge Advocate General.  There is no indication he submitted a request.

8.  On 14 and 20 June 2006, his senior commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 

9.  On 24 August 2006, the separation authority approved his discharge action under Army Regulation 635-200, paragraph 14-12c, with the issuance of a general discharge.  On 27 September 2006, he was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.  He completed 3 years, 10 months, and 24 days of creditable active service with 25 days of lost time.  His DD Form 214 shows in:

* Item 25 (Separation Authority) "Army Regulation 635-200, paragraph
14-12c"
* Item 26 (Separation Code) "JKK"
* Item 28 (Narrative Reason for Separation) "Misconduct (Drug Abuse)"

11.  On 17 September 2008, the Army Discharge Review Board (ADRB) determined he was properly and equitably discharged and denied his request for an upgrade of his discharge.

12.  On 23 April 2010, the ADRB again determined he was properly and equitably discharged and denied his request for an upgrade of his discharge.

13.  The applicant provides a letter from his commander to his Congressman, dated 6 March 2006, wherein the commander stated he was going to investigate the claim of a hostile work environment.  The commander further stated [the applicant's] wife had joined him at Fort Bragg in April 2005 and they continued to serve together.  In addition, he stated [the applicant] had been on the weight control program since January 2004 without making satisfactory progress, was removed from the program after being diagnosed with diabetes, had received numerous adverse counseling statements regarding his duty performance and failure to report to duty in a timely manner, but he had never received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice.

14.  The applicant provides a letter from the IG, Fort Bragg, NC, dated 31 May 2006, wherein the IG stated they determined the allegations the applicant made against two staff sergeants (SSG) in his unit were substantiated for improperly falsifying meal rosters, Army Physical Fitness Test scorecards, and the allegation of verbal abuse against one of the SSGs was not substantiated.

15.  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, drug abuse, 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.

16.  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.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKK" SPD code is the 
correct code for Soldiers separating under paragraph 14-12c of Army Regulation 635-200 and "Misconduct (Drug Abuse)" is the corresponding entry for the narrative reason for separation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his positive urinalysis for marijuana use and the subsequent summary court-martial he received for wrongfully using illegal drugs.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  There is no evidence and he did not submit any evidence to show he was singled out, treated unfairly, or wrongfully discharged.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  He was separated under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct - drug abuse.  The appropriate entry was entered in the narrative reason for separation block of his DD Form 214.  There is neither an error nor an injustice in his narrative reason for separation.  

4.  Although the applicant's post-service conduct may be noteworthy, it does not mitigate the fact that he used illegal drugs during his military service.

5.  In view of the foregoing, there is no basis for granting the applicant's request. 

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)                                         AR20110000569



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ABCMR Record of Proceedings (cont)                                         AR20110000569



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