IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110020347 


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 under honorable conditions to a fully honorable discharge.

2.  The applicant states that he has paid the price for his mistake.  He was reduced, fined, confined, and kicked out for his mistake.  He is now trying to be a role model citizen and/or get a good job but the discharge is keeping him from doing so. 

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant's records show he enlisted in the Regular Army on 1 July 2008.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was assigned to the 6th Squadron, 1st Armored Cavalry Regiment, Fort Bliss, TX.

2.  The applicant’s records further show he served in Kuwait/Iraq and he was awarded the Iraq Campaign Medal with two bronze service stars, Sea Service Deployment Ribbon (3rd Award), U.S. Navy Achievement Medal, Coast Guard Meritorious Unit Commendation, Presidential Unit Citation, U.S. Navy "E" Ribbon, National Defense Service Medal, Armed Forces Expeditionary Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Armed Forces Reserve Medal with "M" Device.
3.  On 24 April 2009, he departed his unit in an absent without leave (AWOL) status.  He returned to military control on 18 May 2009. 

4.  On 19 May 2009, he participated in a unit urinalysis and his unit sample tested positive for cocaine. 

5.  On 17 June 2009, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 24 April to 18 May 2009 and wrongfully using cocaine.

6.  On 3 September 2009, he was convicted by a summary court-martial of two specifications of wrongfully using cocaine.   The Court sentenced him to a reduction to private/E-1, a forfeiture of $933.00 pay, and confinement for 29 days.  The convening authority approved his sentence on the same date. 

7.  On 17 September 2009, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph   14-12c of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of misconduct - commission of a serious offense (testing positive for cocaine).  He recommended a general discharge.

8.  On 13 October 2009, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and 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.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and he elected not to submit a statement in his own behalf.

9.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general, under 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 as a result of the issuance of an under other than honorable conditions discharge.

10.  Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander initiated separation action against him in accordance with chapter 14 of AR 635-200, for misconduct - commission of a serious offense.  The immediate commander recommended an under honorable conditions (general) discharge.

11.  On 15 October 2009, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an under honorable conditions discharge.  

12.  On 27 October 2009, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as under honorable conditions.   Accordingly, the applicant was discharged on 12 November 2009.  

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of paragraph       14-12c of Army Regulation 635-200 with a character of service of under honorable conditions (general) by reason of misconduct - commission of a serious offense (drug abuse).  This form further confirms he completed 1 year, 2 months, and 24 days of creditable active service during this period and he had 50 days of lost time.  

14.  On 12 September 2011, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 

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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are 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. 



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows 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.  The evidence of record shows his 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.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20110020347





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ABCMR Record of Proceedings (cont)                                         AR20110020347



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