IN THE CASE OF:	  

		BOARD DATE:	    3 July 2012

		DOCKET NUMBER:  AR20110024240 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's general discharge under honorable conditions to honorable.  In addition, counsel requests removal of any negative comments relating to these proceedings from the applicant's record.

2.  Counsel states the applicant's official military personnel file should be amended and his discharge should be upgraded to honorable in order to reflect his superior level of military service.  Counsel also states upgrading the applicant's discharge and removing this incident from his record would be in the best interest of the Army and the applicant.

3.  Counsel provides:

* 7-page brief
* the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three DA Forms 4187 (Personnel Action)
* four DA Forms 4856 (Developmental Counseling Form)
* proposed separation memorandum
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ))
* the applicant's discharge orders

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 June 2005 for a period of 5 years and 25 weeks.  Upon completion of initial entry training, he was awarded military occupational specialty 92W (Water Treatment Specialist).

2.  On 25 September 2009, he accepted nonjudicial punishment under Article 15, UCMJ, for wrongfully using methylenedioxymethamphetamine (MDMA) (commonly known as Ecstasy) between 22 and 27 July 2009.  His punishment consisted of reduction to private/E-1, forfeiture of $699.75 pay for 2 months, extra duty for 45 days, and restriction to worship and medical/dental facilities for 45 days.

3.  On 16 October 2009, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2), by reason of misconduct – commission of a serious offense (drug abuse).  He was advised of his rights.

4.  He acknowledged notification, consulted with legal counsel, was advised of the impact of the discharge action, and submitted statements in his own behalf which are not in the available records.

5.  The applicant's chain of command recommended his discharge from the service under honorable conditions.

	a.  In a memorandum, dated 27 October 2009, the unit commander cited the reasons for his recommendation for an administrative separation as:

		(1)  The applicant made the decision to use MDMA on his own during his evaluation for the medical evaluation board (MEB) process.

		(2)  This decision he made was against Army policy and the applicant should be "chaptered out" of the Army.

	b.  In a memorandum, dated 27 October 2009, the intermediate commander cited the reasons for his recommendation for an administrative separation as:

		(1)  The applicant deliberately acquired and used MDMA while assigned to the rear detachment and undergoing evaluation for an MEB.

		(2)  The applicant's medical condition of night blindness was a genetic condition shared by his brother and not related to his service.

	c.  In an undated memorandum, the senior intermediate commander cited his reasons for recommendation for an administrative separation as the applicant's conduct negated consideration for a more favorable outcome.

6.  On 5 November 2009, the general court-martial convening authority (GCMCA) stated that having reviewed both the applicant's separation packet and medical evaluation board results, he had determined the applicant's case would continue to be processed under the provisions of Army Regulation 635-200, paragraph 
14-12c(2).  The GCMCA stated he found the applicant's medical condition was neither a direct or substantial contributing cause of the conduct that led to his recommended administrative separation nor that the individual circumstances of the applicant's case warranted disability processing instead of further processing for administrative separation.

7.  Counsel provides three DA Forms 4187 which indicate the applicant's duty status changed from:

* present for duty to hospitalization effective 9 November 2009
* hospitalization to present for duty effective 13 November 2009
* hospitalization to present for duty effective 17 November 2009

8.  Counsel also provides four DA Forms 4856 which indicate the applicant received adverse counseling on various dates in 2009 for:

* positive urinalysis test results
* notification that he was being flagged for elimination
* positive urinalysis test results
* disrespecting a noncommissioned officer 

9.  On 18 November 2009, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct – commission of a serious offense (drug abuse) with a general discharge.  He completed 4 years, 4 months, and 21 days of active military service.  The highest grade he attained was specialist/E-4; however, at the time of his discharge he held the rank/pay grade of private/E-1.

10.  His DD Form 214 shows he served in Kuwait/Iraq from 28 October 2006 to 8 December 2007.

11.  His DD Form 214 shows he was awarded or authorized the Army Commendation Medal, Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with one bronze service star, Army Service Ribbon, and Overseas Service Ribbon.
12.  A review of the interactive Personnel Electronic Records Management System revealed the discharge proceedings were filed in the service section of his official military personnel file.

13.  On 29 January 2011, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

14.  Counsel provides a 7-page brief attesting to the reasons the applicant's discharge should be upgraded to honorable.

	a.  The applicant entered the Army in June 2005, served honorably for over 4 years, held various positions, served honorably overseas, and received numerous awards recognizing his skills and dedication.

	b.  The applicant suffered from optical problems, was being considered for medical separation from the Army and had been hospitalized several times, but he was still required to perform numerous physical activities that he didn't feel comfortable performing.

	c.  The applicant tested positive for Ecstasy, was later counseled regarding his one isolated positive test result, and received an Article 15 for this offense.  He received appropriate punishment, including reduction in rank, forfeiture of pay, and restricted privileges.  He fulfilled all of the conditions of his punishment.

	d.  The applicant received notification of his separation from the Army and the administrative separation was approved despite the fact that the applicant was being considered for medical separation.

	e.  The applicant's opportunity for a medical discharge was eliminated and he was administratively separated in November 2009 with a general discharge under honorable conditions.

	f.  The Army Board for Correction of Military Records should grant the applicant an honorable discharge because his record of service was exemplary and he has already paid a punishment for his isolated mistake.  Adding a negative discharge characterization to his punishment serves only to make it disproportionate to the offense and create an inequitable remedy.  The applicant served with honor and distinction, both at home and abroad, and he was an integral part of his team during its service in Kuwait and Iraq.

	g.  This discharge negatively impacts the applicant's benefits as well as his ability to obtain adequate future employment.

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, 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 635-200, paragraph 1-33, states the GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated and one of the following has been determined:

	a.  the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination or

	b.  other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant should be granted an honorable discharge because of his exemplary record and because he has already paid the price for his isolated mistake.

2.  The evidence of record indicates the applicant tested positive for MDMA in July 2009 and he received nonjudicial punishment under Article 15, UCMJ, for this offense.  Considering the seriousness of the applicant's offense, it appears that his service was appropriately characterized.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct – commission of a serious offense (drug abuse) – was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The evidence of record shows the applicant was being considered for medical separation for a medical condition of night blindness.  However, the GCMCA found that this condition was neither a direct or substantial contributing cause of the conduct that led to his recommended administrative separation nor that the individual circumstances of the applicant's case warranted disability processing.  As result, the GCMCA determined the applicant's case would continue to be processed under the provisions of Army Regulation 635-200, paragraph 
14-12c(2).

5.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge but characterized his service as general under honorable conditions.

6.  Counsel's request for removal of any negative comments relating to the applicant's discharge proceedings is also acknowledged.

7.  Counsel has not presented sufficient evidence and there is no evidence of record to show the applicant's present discharge warrants a change to fully honorable or that any negative comments relating to the discharge proceedings should be removed from the applicant's record.  Therefore, there is no basis for granting the requested relief.

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)                                         AR20110024240



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024240



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1