BOARD DATE:	  7 February 2013

		DOCKET NUMBER:  AR20120010397 


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 upgrade of his general discharge to an honorable discharge and change of his Reentry Eligibility (RE) code to a level that would make him eligible to reenter military service.

2.  The applicant states his discharge was unjust because it was based upon an unsubstantiated claim, his urinalysis was lost, and he was treated unfairly for a year while he awaited a court-martial he requested but never received.  He attests this treatment led to some poor decisions on his part.  He contends that had the investigation into his use of steroids been handled in a timely manner none of this would have happened.  He desires the opportunity to either reenter military service or to have his discharge upgraded so he may take advantage of his GI Bill benefits and improve his position in life.

3.  The applicant provides:

* a self-authored statement
* his administrative discharge packet

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that following a period of time in the Army National Guard, he enlisted in the Regular Army (RA) on 22 March 2007.  Upon completion of initial entry training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.  However, at the time of his discharge he held the rank/grade of private (PV1)/E-1.

2.  The applicant's Army Military Human Resource Record ((AMHRR), formerly known as the Official Military Personnel File (OMPF)), contains a General Officer Memorandum of Reprimand (GOMOR), dated 25 October 2007, that shows on 21 October 2007, the applicant was apprehended for driving while impaired with a blood alcohol content of 0.15, which was almost twice the legal limit.  The applicant acknowledged his mistake, proclaimed his realization of the serious consequences of not drinking responsibly, stated he had attended Alcoholics Anonymous meetings, confirmed his desire to honorably serve in the Army, and cited his recent service in Afghanistan wherein he received an Army Commendation Medal.  As such, he humbly requested the GOMOR be filed in his local Military Personnel Records Jacket.  The applicant's request for local filing of the GOMOR was endorsed by his company, battalion, and brigade commander; however, after review of the applicant's rebuttal and chain of command recommendations, the GOMOR issuing authority directed the GOMOR be filed in his AMHRR.

3.  His record contains multiple DA Forms 2823 (Sworn Statement) rendered at Camp Stone, Herat, Afghanistan on 8 December 2009 that document an incident wherein a senior noncommissioned officer witnessed a Soldier inject a substance from a vial into himself with a syringe and the subsequent initiation of an investigation into the possible abuse of a controlled substance within the unit.

4.  On 9 December 2009, an investigator advised the applicant of his right pertaining to responding to questions into his suspected illegal use or consumption of a controlled substance in violation of U.S. Central Command (USCENTCOM), General Order Number 1B, paragraph 2, section D, Subject:  Prohibited Activities for U.S. Department of Defense Personnel Present within the USCENTCOM Area of Responsibility.  The applicant acknowledged his rights and consented to questioning.  He stated he had not witnessed any possession or use of controlled substances, to include steroids, during the deployment by anyone, to include himself.  He consented to search of his personal belongings and a urinalysis, but elected not to make any statements at the time.

5.  On 9 December 2009, urine samples were collected from the applicant and three other Soldiers by command directive due to probable cause for use of steroids based upon witness statements given under oath.  A DD Form 2624 (Specimen Custody Document - Drug Testing) shows positive control of the specimens was maintained from 9 December 2009 through 2 March 2010 when 

it was received for processing at the testing laboratory which is one of the laboratories in the United States that is licensed by the International Olympic Committee to test urine specimens for steroids.  A Drug Testing Report, dated
11 March 2010, shows the applicant's urine sample tested positive for use of controlled anabolic androgenic steroids such as nandrolone, norandrostenedione, and norandrostenediol.

6.  The applicant provides five DA Forms 4856 (Developmental Counseling Form) rendered for his monthly counseling for the months of February through June 2010.  These forms show his team leader continuously praised his duty performance and physical fitness.  It was noted that the applicant's recognized leadership potential led to his recommendation for promotion from private first class (PFC)/E-3 to SPC/E-4; however, he was ineligible for promotion due to an on-going investigation.  It was also noted that in spite of this delay in promotion, the applicant maintained a high level of enthusiasm and performance of duty.

7.  On 13 July 2010, the applicant rendered a DA Form 2823 wherein he stated that during a 15-minute telephone conversation his trial defense counsel:

* questioned why the applicant chose to be in the infantry rather than some other specialty while having a General Technical score of 116
* stated he thought the applicant was dishonest, should "man up," confess, and ultimately just take any punishment doled out to him
* asked him where he purchased his supplements and if he injected them; the applicant stated he bought pills over the internet to take orally
* refused to listen to some of the evidence which made the investigation suspicious

8.  The applicant underwent a behavioral health evaluation and preseparation medical examination during the period 29 November and 8 December 2010.

9.  On an unspecified date, the applicant's unit commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct for wrongful use of anabolic steroids.  He was recommending the issuance of a general discharge.  He was advised of his rights and the impact of the discharge.

10.  On 16 February 2011, after consulting with legal counsel, the applicant requested:

* personal appearance before a board of officers
* appointment of a military counsel and representation by counsel
* 
to submit statements in his own behalf to the separation board
* to receive copies of documents that would be sent to the separation authority supporting the proposed separation
* a copy of the laboratory documents for his positive urinalysis

11.  The applicant's platoon leader, squad leader, and former squad leader provided letters of support in behalf of the applicant wherein they praised his performance, professionalism, tactical proficiency, motivation, and level of physical fitness.  They noted he was never found to be in possession of a controlled substance and that the supplements he used could be purchased in any nutrition store.  Each of them opined the applicant's investigation and disciplinary action had not been handled in either a timely or administratively correct manner by the chain of command.  Each of them also opined that he possessed great potential and recommended that applicant be retained in the Army.

12.  The applicant's record contains and he also provides a DA Form 2823, dated 25 January 2011, wherein his former platoon leader stated he was the applicant's platoon leader from April 2009 to September 2010.  Around June 2010, while his platoon was in Bala Murghab (Afghanistan), he inquired about the status of an investigation that was started on his platoon in December 2009.  He was informed that Brigade had misplaced the paperwork and had to do it all over again.  Along with that paperwork they would have to wait for the test results to be sent from California again.  Later, when the platoon returned to Fort Bragg, NC, they continued to look into the paperwork of the investigation, but were told that it was packed in a container.  He felt the entire process of the investigation was handled poorly and unjustly.

13.  On 14 April 2011, the applicant's unit commander notified him he was initiating action to separate him under the provisions of Army Regulation
635-200, paragraph 14-12c, for commission of a serious offense with a general discharge.  The commander stated the reason for this action was the applicant's positive urinalysis for Norandrosterone and Noretiocholanolone, which are metabolites of a Schedule III controlled anabolic androgenic steroid.  He was advised of his rights and the impact of the discharge.  The applicant acknowledged receipt of this notification and the understanding of his rights.

14.  On 18 April 2011, the unit commander recommended the applicant be separated for the aforementioned reason.  The battalion commander concurred with the recommendation.

15.  On 1 June 2011, the applicant was issued a GOMOR that shows that on 30 May 2011 he was apprehended after Military Police stopped him for failing to stop for a stop sign.  He refused to submit to a breathalyzer test and he was subsequently charged with driving while intoxicated.  The applicant acknowledged receipt of the GOMOR and his understanding that he had seven calendar days to submit any documentation in his behalf as a rebuttal.  He indicated he elected to submit matters in his behalf and acknowledged that failure to do so may result in the filing of the GOMOR in his AMHRR.

16.  On 14 June 2011, he consulted with legal counsel and he was advised of the basis for the contemplated action to accomplish his separation for misconduct and its effects; the rights available to him; and the effects of any action taken by him in waiving his rights.  He waived his right to consideration of his case by an administrative separation board contingent upon his receiving a characterization of service no less favorable than general, under honorable conditions.  He elected not to submit statements in his own behalf.  He also indicated his understanding that if he received a discharge certificate or character of service which was less than honorable he could expect to encounter substantial prejudice in civilian life and he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also indicated his understanding that if he received a less than honorable discharge he could make application to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.

17.  On 18 June 2011, the separation authority approved the applicant's separation and directed the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  He determined his service would be characterized as under honorable conditions.

18.  His record contains a memorandum rendered by a paralegal on 20 June 2001 that shows he failed to submit rebuttal matters in response to the GOMOR he received.  Therefore, the GOMOR was forwarded to the command for recommendations and the Commanding General's filing determination.  His company, battalion, and brigade-level commanders all recommended filing in his AMHRR.  They also noted it was not his first offense and noted the fact that he was being processed for an administrative separation due to a pattern of misconduct.  After review of the applicant's chain of command recommendations, the GOMOR issuing authority directed filing in his AMHRR.

19.  On 14 July 2011, the applicant was discharged.  The DD Form 214 he was issued at the time shows:

* his service was characterized as under honorable conditions (General)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c
* he was assigned a separation program designator (SPD) code of "JKK"
* he was assigned the corresponding RE Code of "4"
* the narrative reason for his separation as "Misconduct (Drug Abuse)"

20.  On 18 October 2011, the applicant applied to the ADRB for an upgrade of his general discharge to an honorable discharge, change of his SPD code, change of his RE code, and change of the narrative reason for his separation.  He contended that all the charges were dropped in another Soldier's case with similar circumstances.  On 26 March 2012, the applicant personally appeared before an ADRB hearing and testified in his own behalf.  On 2 April 2012, by letter, the applicant was advised that after careful review of his application, military records, his testimony, and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

21.  The applicant provides a self-authored statement wherein he states he was ultimately discharged for the alleged use of steroids, which he knows to be false. He attests that he is an easy target for this accusation because he put a premium on being in peak physical condition.  He attests that at the time he was taking the supplement, it was not on the banned substance list; it was added to the list later. He claims he was also denied his right to a trial by court-martial and his right to a speedy trial.  The whole of the investigation lasted from 9 December “2010” (i.e., 2009) until his discharge on 14 July 2011, a total time 19 months, during which time he was informed by a lieutenant his original urinalysis had been lost and he could expect to be cleared of the allegations.  He understands what led to his ultimate discharge was having another alcohol-related incident and that may make his ultimate goal of reenlisting and earning a green beret an impossibility.  However, he is confident that had this situation been resolved in sufficient time, he could have cleared his name and carried on with his Army career.  He believes his two tours as an Infantry Reconnaissance Paratrooper earned him the right to better his position in the civilian world by getting an education with the Post-9/11 G.I. Bill.

22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 deals with separation for various types of misconduct which includes drug abuse and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration of term of service.  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.

	b.  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.

23.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2) by reason of misconduct (drug abuse).  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JKK.

24.  Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his general discharge to an honorable discharge and changing his RE code to make him eligible to reenter military service was carefully considered and found to lack merit.

2.  The applicant's contention that he served his country honorably during two deployments is duly noted as are his contentions that his urinalysis results were lost and that had he been afforded faster due process, he would have never received his second GOMOR for driving under the influence.  However, the evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors that 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.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.

4.  As such, he was properly and equitably discharged with the appropriate reason and assigned the appropriate RE Code.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting him an honorable discharge or changing his SPD code, RE Code, or narrative reason for separation.

6.  Additionally, the applicant is advised that the Army Board for Correction of Military Records does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits or to reenter military 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)                                         AR20120010397



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ABCMR Record of Proceedings (cont)                                         AR20120010397



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