IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110019063 


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 correction of his discharge to show his service is honorable instead of uncharacterized.

2.  The applicant states he has matured.  

3.  The applicant did not provide any evidence.  

CONSIDERATION OF EVIDENCE:

1.  On 16 November 2006, the applicant enlisted in the Regular Army and he was assigned to Fort Benning, GA for completion of training.  

2.  On 3 January 2007, he participated in a unit urinalysis and his urine sample tested positive for cocaine.

3.  On 25 January 2007, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine.  

4.  On 6 February 2007, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  He cited the specific reason was the applicant's wrongful use of cocaine.  
5.  On 6 February 2007, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct and its effect, of the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He further elected an administrative separation board (although he was not entitled to a board).  He also elected not to submit a statement on his own behalf.

6.  Subsequent to his acknowledgement of this notification, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct.  The immediate commander recommended a waiver of further rehabilitative efforts.

7.  On 7 February 2007, the applicant’s intermediate commander recommended approval of the applicant’s discharge, a waiver of a rehabilitative transfer, and the issuance of an uncharacterized discharge.

8.  On 20 February 2007, the applicant’s separation packet was reviewed by a military attorney and it was found legally sufficient.

9.  On 22 February 2007, the separation authority approved the separation packet and ordered the applicant discharged from the Army under the provisions of paragraph 14-12c of Army Regulation 635-200 with the issuance of an uncharacterized discharge.  On 5 March 2007, the applicant was accordingly discharged.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 with uncharacterized service.  This form further shows he completed 3 months and 20 days of creditable active service.  Item 26 (Separation Code) of this form shows the entry "JKK."

11.  On 12 December 2008, the Army Discharge Review Board denied his petition to change his character of service.

12.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter, but the service will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.  Additionally, 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 the regulation.

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.

14.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows shortly after entering active duty the applicant committed a serious offense in that he wrongfully used illegal drugs.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and approved by the Secretary of the Army.  

3.  An uncharacterized discharge is neither positive nor negative and it is not derogatory.  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

4.  The applicant’s discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant has not shown an error or an injustice and he did not provide any evidence or sufficiently mitigating argument to warrant a change in the character of his service.

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)                                         AR20110019063



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ABCMR Record of Proceedings (cont)                                         AR20110019063



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