IN THE CASE OF:	  

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130004515 


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 under other than honorable conditions discharge.

2.  The applicant states the military provided treatment and drugs for pain while in the field to keep him a productive Soldier.  He sought his own treatment and he was no longer supported by the military.

3.  The applicant provides a memorandum from the Department of Veterans Affairs (VA) Regional Office, Boston, MA, dated 6 September 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 July 2001.  He held military occupational specialty 11B (Infantryman).  He attained the rank/grade of specialist (SPC)/E-4.

2.  On 28 November 2006, pursuant to his pleas, the applicant was convicted by a summary court-martial of:

* violating a general order by wrongfully purchasing, possessing, using, and transferring controlled substances between 28 August and 7 October 2006
* possessing valium between 28 August and 7 October 2006
* possessing tamazepam between 28 August and 7 October 2006
* possessing xanax between 28 August and 7 October 2006
* distributing valium schedule IV controlled substances to an unknown Soldier on 4 October 2006
* using xanax between 28 August and 7 October 2006
* using valium between 28 August and 7 October 2006
* wrongfully and intentionally inhaling pressurized gases to induce euphoria between 1 October and 7 October 2006
* willfully disobey a lawful order from a noncommissioned officer (NCO) on 10 November 2006
* being disrespectful in language toward an NCO on10 November 2006
* two specifications of being prejudicial to discipline and good order toward two NCO's on 10 November 2006

3.  He was sentenced to reduction to private (PV1)/E-1, forfeiture of pay for one month, and confinement for 30 days.

4.  On 26 November 2006, the applicant’s commander initiated separation action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14, for commission of a serious offense.  The reason cited by the commander was the applicant's conviction by a summary court-martial for possessing, using, and distributing; and being disrespectful toward NCO's.

5.  On 30 December 2006, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was also advised of the impact of the discharge action.  The applicant signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14.  He waived his right to an administrative separation board, he elected representation by military counsel, and elected to submit a statement in his own behalf.

6.  The applicant stated that he made a mistake and that somehow he lost track of who he was.  In the 18 years of growing up in the foster care system, he avoided drugs, crime and personal failure to prepare himself for a life in the military.  The applicant stated in the midst of the premature death of friends, his injured back, and his wife's decision to divorce him, he found himself faced with the worst stress he had ever endured.  The issues clouded his head and he was too proud and scared to seek help.  He loved the Army and it killed him to picture himself without the military.

7.  On 29 January 2007, the separation authority, a major general, approved the applicant's recommendation for discharge and directed the applicant receive an under other than honorable conditions discharge.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 15 March 2007, shows the applicant underwent a mental evaluation by a military psychiatrist pursuant to his separation action.  The psychiatrist indicates the applicant's mental status was within normal limits.  He further determined the applicant was psychologically cleared for any administrative action deemed appropriate by the command.

9.  On 5 April 2007, he was discharged under the provisions of Army Regulation
635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse) with an under other than honorable conditions discharge.  He completed 5 years,
8 months, and 7 days of creditable active service.

10.  The applicant provided a memorandum from the VA Regional Office in Boston, MA, dated 6 September 2007.  The document shows VA officials made a determination whether the applicant's discharge from the Army was considered "Dishonorable for VA purposes" for treatment of his medical condition.  The VA officials noted that, although there were several instances of misconduct listed in the facts and circumstances surrounding his discharge, it appeared the rest of his service was faithful and meritorious.  The officials decided to consider the applicant's discharge to be honorable for VA purposes.

11.  On 16 July 2012, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 21 December 2012, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined the applicant's discharge was proper and equitable and that the reason and characterization of his discharge were both proper and equitable.

12.  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, that includes drug abuse, and states individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  First time drug offenders in the grade of sergeant (SGT) and above, and all Soldiers with 3 years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense.  All Soldiers must be processed for separation after a second offense.

	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.

	c.  Paragraph 3-7b provides 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 request for upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant's record shows he was convicted by a summary court-martial of wrongfully purchasing, possessing, using, and transferring controlled substances; disobeying a lawful order from an NCO; and being disrespectful towards two NCO's.  As a result, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The applicant was then discharged under the provisions of Army Regulation 635-200, chapter 14-12c(2) for misconduct (drug abuse) after completing 5 years, 8 months, and 7 days of active service.  By regulation, this mandated the applicant be processed for separation from the Army.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separated process.

5.  The fact that the VA determined his service was honorable for VA purposes is not evidence of any error or injustice on the part of the Army.  The VA, operating 
under its own policies and regulations, may make such a determination as it sees fit.  An action by that agency does not compel the Army to modify its reason or authority for separation.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130004515



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004515



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1