IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110003426 


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 has combat-related service and is a veteran of Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF).  He states his conduct and efficiency ratings and his behavior and proficiency marks were good while he was in the Army and as a result of his service he has long-lasting and severe emotional problems.  He states that every day nationals and terrorist sympathizers who cleaned the facilities would threaten to kill him while he was asleep and would say America was no good.  He states he had permanent injuries to both shoulders and ankles and he suffers from constant back pain.

3.  The applicant further states:

* he has been awarded a 90-percent service-connected disability rating by the Department of Veterans Affairs (VA)
* he was given a general discharge for misconduct due to a single action that occurred stateside
* his punishment was much worse than most people receive for a similar offense
* there were nine service members involved in the incident that led to his discharge and he was the only one who was disciplined
* the other service members were allowed to stay in the service
* he was a minority in the unit to which he was assigned and he believes it was a factor in being booted out of the Army so quickly
* his ability to serve was impaired because he had difficulty in adjusting to stateside duty and coping with all things that happened when he returned from overseas
* he has been diagnosed with an anxiety disorder and post-traumatic stress disorder
* he is in severe financial debt and, even with the challenges he faces, he is a family man and has been a good member of his community
* he has been told that his local VA will not consider applications for employment from veterans with less than fully honorable discharges

4.  The applicant provides the following documents through the American Legion:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored letter to the "Discharge Review Board"
* a letter from the Oneida County Veterans' Service Agency
* a letter from the Syracuse VA Medical Center

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel requests to be appropriately informed of all action taken in the applicant's case.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 January 2002.  He completed training as a fuel and electric systems repairer.

2.  A command-directed urinalysis was conducted on 27 May 2003 and the applicant's sample tested positive for cocaine.

3.  On 23 June 2003, the applicant was counseled for wrongful use of a controlled substance.  He was told that all drug incidents were referred to the battalion commander for action under the Uniform Code of Military Justice (UCMJ).  He was also told that action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, would be initiated and that he was being command-referred to the Army Substance Abuse Program.  He was told of the types of discharge he could receive if he were discharged for misconduct or unsatisfactory performance.

4.  On 24 June 2003, the applicant was counseled and notified he was being barred from reenlistment.  He was told that Soldiers who believe they will be 

unable to overcome a bar to reenlistment may apply for immediate discharge per Army Regulation 635-200, chapter 16.

5.  The applicant was counseled again on 24 June 2003 and he was told that a field grade Article 15 was being initiated against him for wrongful use, possession, etc., of a controlled substance.  He was told that his actions would not be tolerated and further conduct of this nature might result in punitive action under the UCMJ and/or separation under Army Regulation 635-200.

6.  On 25 June 2003, the applicant was counseled and told that action to separate him under the provisions of Army Regulation 635-200, 
paragraph 14-12c, was being initiated for commission of a serious offense.

7.  He accepted nonjudicial punishment on 15 July 2003 for wrongfully using cocaine, a Schedule II controlled substance.

8.  The applicant was notified he was being recommended for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2).  On 6 August 2003, he acknowledged receipt of the notification.  After consulting with counsel, he elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on 28 August 2003 and directed the issuance of a general discharge.

10.  On 19 September 2003, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-24c(2), for misconduct due to drug abuse.  He completed 1 year, 8 months, and 11 days of net active service during this period and he was issued a General Discharge Certificate.

11.  On 20 November 2009, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

12.  The applicant submits letters from the Oneida County Veterans' Service Agency and the Syracuse VA Medical Center attesting to his good character and post-service conduct.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include the commission of a serious offense.

	b.  Paragraph 14-12c(2) states, "Abuse of illegal drugs is serious misconduct."  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.

	c.  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's contentions have been noted.

2.  His records show he tested positive in a urinalysis for cocaine use.  There is no evidence in the available records substantiating his contention that he was treated differently than others because he was a minority in his unit.  There is also no evidence in his record showing he has combat related service and is a veteran of OEF and OIF.  He was discharged in accordance with the applicable regulation.  A discharge under other than honorable conditions is normally considered appropriate.

3.  The applicant has not shown error or injustice in the type of discharge he received.  He received a general discharge because his service was not fully honorable.

4.  His post-service conduct has been considered; however, it is not a sufficient justification for upgrading his discharge.  Therefore, 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 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)                                         AR20110003426



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ABCMR Record of Proceedings (cont)                                         AR20110003426



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