IN THE CASE OF:	  

		BOARD DATE:	  7 February 2013

		DOCKET NUMBER:  AR20120013632 


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 the following:

* upgrade of his general discharge to an honorable discharge
* change his narrative reason for separation

2.  The applicant states his discharge was unnecessary and records show honorable service.  His being discharged after rehabilitation was not necessary.  Discharge was for expedient purposes and was not appropriate.  Discharge was unjust in this manner.

3.  The applicant provides:

* Active New Drug Testing Results
* Mental Status Evaluation
* counsel's rebuttal to Army Regulation 635-200 (Personnel Separations - Enlisted Separation), chapter 14, proposed separation
* 2010 Intensive Outpatient Program completion certificate

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-1, on 27 September 2007, for 4 years.  He completed training and was awarded military occupational specialty (MOS) 68W (Health Care Specialist).

2.  On 30 June 2010, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using steroids on or about 14 May 2010.  

3.  On 26 July 2010, he underwent a mental status evaluation.  His behavior was found to be normal.  He was found to be fully alert and fully oriented, his mood or affect was unremarkable, his thinking process was clear, his thought content was normal and his memory was good.  He was cleared for any administrative action deemed appropriate.

4.  On 28 July 2010, he receiving counseling of possible separation in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Separation), chapter 14-12c, for Serious Acts of Misconduct, for wrongfully using steroids.  

5.  On 9 August 2010, the applicant's National Registry Emergency Medical Technician certificate was revoked as a result of his NJP for wrongful possession of a controlled substance.  It was determined that he represented a risk to public health and safety.

6.  On 9 August 2010, after consulting with counsel, he acknowledged the proposed separation action.  He also acknowledged he understood he could be issued a general discharge and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 15 August 2010, the applicant's commander initiated action to separate the applicant for the commission of a serious offense, misconduct-use of illegal drugs, with a general discharge.

8.  On 17 August 2010, the applicant's counsel requested the pending chapter action be halted giving the applicant the time to pursue his appeal.  It was also requested in the alternative, he be released from the service as a Ranger and permitted to serve in the Army in a separate capacity in lieu of his separation.  

9.  On 15 September 2010, the convening separation authority approved the applicant's discharge and directed the issuance of a general discharge.

10.  He was discharged in pay grade E-3 on 23 September 2010, under the provisions of Army Regulation 635-200, paragraph 14-12c.  Item 26 (Separation Code) on his DD Form 214 shows the entry “JKQ.”  Item 28 on this form contains the entry, “Misconduct (Serious Offense).” 


11.  On 4 July 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation states in:

   a.  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.

	b.  Paragraph 14-12c provides for the separation of Soldiers for the commission of a serious offense of misconduct from the harsher penalties that may be imposed under the UCMJ.  The issuance of a discharge under other than other honorable conditions is normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

	c.  Paragraph 3-7a states an honorable discharge is 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 will be clearly inappropriate.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), prescribes the specific authorities (regulatory, statutory, or other directives), the
reasons for the separation of members from active military service, and the SPD codes to be used for those stated reasons.  The SPD of "JKQ" as shown on his DD Form 214 was appropriate when the narrative reason for involuntary discharge was "Misconduct (Serious Offense)" and the authority for discharge was Army Regulation 635-200, paragraph 14-12c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support a change of his general discharge under honorable conditions.  The evidence of record shows he, a medical specialist, accepted punishment under Article 15 for the wrongful use of steroids.  As a result, his National Registry 

Emergency Medical Technician certificate was revoked and it was determined that he represented a risk to public health and safety.  His commander initiated action to separate him under the provisions of Army Regulation 635-200, 
paragraph 14-12c, with a general discharge.  

2.  He acknowledged the separation action and the type of discharge he could receive.  He waived his rights and elected not to submit a statement in his own behalf.  The separation authority approved his discharge and he was discharged accordingly on 23 September 2010.

3.  At the time of his discharge, the issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, it appears the applicant's overall record was taken into consideration by the separation authority when it was directed that he receive a general discharge under honorable conditions.  The evidence shows his misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.

4.  The applicant has provided no evidence to show his discharge was unjust.  Without evidence to the contrary, it appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He was properly separated for misconduct - commission of a serious offense.

5.  He has failed to show through the evidence submitted or the evidence of record that the narrative reason for separation of his DD Form 214 is incorrect.  

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)                                         AR20120013632



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ABCMR Record of Proceedings (cont)                                         AR20120013632


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