IN THE CASE OF:	  

		BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120007187 


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 that his discharge under other than honorable conditions be upgraded to a discharge under honorable conditions (general).

2.  The applicant states:

* during his brief military service, he was subject to poor leadership at a young age
* he was going through very hard times with his wife and family
* it has been over 6 years since he messed up his name with the Army and he believes by obtaining a better discharge, he can enlist in the Army National Guard
* he has not used any illegal drugs since he failed his urinalysis 
* he hopes he is given one chance to reinstate himself as a Solder
* he hopes to serve his country well and with pride

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  On 1 September 2004, the applicant enlisted in the Regular Army for 3 years and 4 months, at age 19.  He completed training as a fire support specialist.

2.  On 5 September 2005, the applicant was counseled for testing positive on a urinalysis that was conducted on or about 9 August 2005.  He was told that under no circumstances would his conduct be tolerated.

3.  On 27 September 2005, the applicant's commander was notified that, as a result of a urinalysis, he had tested positive for amphetamine/methamphetamine.

4.  The applicant was counseled on 28 September 2005, for testing positive during his urinalysis.  He was told that he tested positive for multiple drugs and that this was his second failed urinalysis.  According to his senior noncommissioned officer, the applicant lied to his chain of command and said he had not been doing drugs since his last positive urinalysis.  He was told that he may be submitted for Uniform Code of Military Justice (UCMJ) actions if job performance and misconduct continued.  He was told that if his conduct continued he may be separated from service.

5.  The date on the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) is not legible.  His records show that he accepted nonjudicial punishment for wrongfully using marijuana between 17 June 2005 and 18 July 2005.

6.  On 31 October 2005, the applicant was notified that charges were pending against him for four specification of wrongful use of marijuana, cocaine, and methamphetamine.  He acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant submitted a statement in his own behalf which states:

* he understood that drug use is detrimental to the moral and effectiveness of the Army
* he deeply regretted whatever harm to his unit that resulted from his illicit drug usage
* he was 20 years old and had a drug problem when he enlisted in the Army to get away from the drug culture and to get a fresh start and learn some discipline
* his team leader got drunk and pushed him trying to provoke a physical altercation
* he refrained from fighting but things were never the same because his wife witnessed the incident and was extremely distraught
* he and his wife started having financial difficulties and his team leader's wife started calling his parents and his in-laws about their finances
* the stress that was created ultimately proved too much for his wife and she left in late July to go back home to Mississippi
* his team leader ordered him to work more CQ shifts and the team leader never missed an opportunity to call him inappropriate names
* he snapped and started using drugs and ultimately missed 5 days of work and attempted suicide
* the drug use was a horrible mistake and he was willing to take full responsibility for his actions

7.  The appropriate authority approved the request for discharge on 2 December 2005.  On 4 January 2006, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He competed 1 year, 4 months, and 4 days of net active service this period.

8.  On 21 April 2010, the Army Discharge Review Board (ADRB) denied the applicant's appeal for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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 applicant's contentions have been noted.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant was 19 years old at the time of his enlistment in the Army.  However, youth and/or immaturity are insufficient justifications for upgrading his discharge.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on youth and/or immaturity, or the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.

4.  In view of the foregoing, the applicant's 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 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)                                         AR20120007187





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ABCMR Record of Proceedings (cont)                                         AR20120007187



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