IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110021529 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

* He was not given proper counsel
* He was not given treatment; he was denied treatment
* The wrong social security number (SSN) was on the second positive test results
* The document was falsified by his chain of command

3.  The applicant provides no documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 April 2003 for a period of 
3 years.  Records show the ninth digit of his SSN is "5."  He completed his training and was awarded military occupational specialty 11B (Infantryman).  He served in Iraq from 1 September 2003 to 16 January 2004.  On 31 May 2005, he was honorably discharged for immediate reenlistment.  

2.  He reenlisted on 1 June 2005 for a period of 4 years.  He served in Iraq from 15 September 2005 to 11 September 2006.  He was promoted to sergeant on 
1 July 2006.  He served in Iraq from 23 September 2007 to 11 February 2008.     

3.  On 28 November 2006, nonjudicial punishment (NJP) was imposed against the applicant for using cocaine. 

4.  On 3 October 2007, NJP was imposed against the applicant for using cocaine between on or about 14 July and 14 August 2007.  The drug testing laboratory results for this urinalysis show the ninth digit of the SSN as "4." 

5.  On 14 October 2007, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph
14-12c, for misconduct (commission of a serious offense).  The unit commander cited his drug use as the basis for this action.

6.  His election of rights is not available but records show on 8 January 2008 he acknowledged receipt of his pending separation action and indicated he had been advised of his right to consult with counsel prior to making any election of rights.  On 9 January 2008, his defense counsel submitted a statement on his behalf and stated:

* The applicant should be retained or receive an honorable discharge based on 5 years of service and three combat tours in Iraq
* He should get an opportunity to use the Army Substance Abuse Program
* His military record for the most part has only minor infractions
* He received a Good Conduct Medal in 2006 and an Army Commendation Medal for his duties in Iraq 
* He had a prior period of honorable service

7.  On 10 January 2008, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

8.  On 29 February 2008, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense) with a general discharge.  He completed a total of 4 years, 10 months, and 15 days of creditable active service.  

9.  On 13 August 2009, the Army Discharge Review Board denied his request for an honorable discharge.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

11.  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 applicant contends he was not given proper counsel.  Although his election of rights is not available, evidence shows on 8 January 2008 he indicated he had been advised of his right to consult with counsel prior to making any election of rights.  His defense counsel submitted a statement on his behalf.  

2.  His contention that he was not afforded treatment does not justify the misconduct for which he was convicted.  Also, there is no evidence he took steps to self-refer for drug treatment while in the Army.

3.  The evidence of record supports his contention that the wrong SSN appears on the 2007 drug testing laboratory test results.  The ninth digit of the SSN shown on these results is "4" and the ninth digit of his SSN is "5."  However, he tested positive for cocaine the first time in 2006 and a one- time drug use is sufficient for a general discharge.  

4.  He also contends the document was falsified by his chain of command.  However, there is no evidence and he provided no evidence to support this contention.

5.  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 therefore were appropriate considering all the facts of the case.

6.  His record of service included NJP for cocaine use.  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.



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)                                         AR20110021529



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ABCMR Record of Proceedings (cont)                                         AR20110021529



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