IN THE CASE OF:  

		BOARD DATE: 5 December 2013

		DOCKET NUMBER:  AR20130007182


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

	a.  He admits he had a problem with drugs and made a huge mistake.  He informed his noncommissioned officer (NCO) that he had personal problems and he needed help before he failed the urinalysis test.   

	b.  After he failed the urinalysis test he was sent to a rehabilitation facility at Fort Gordon, Georgia.  There he learned about his problem and overcame it.  After completing rehabilitation he was returned to Fort Hood, Texas to a new unit.  He had been informed by his previous commander at Fort Hood that after completing rehabilitation he could stay in the Army.

	c.  However, after reporting to his new unit the commanding officer immediately "kicked him out of the Army."

	d.  He is now trying to become a police officer and he was told he needs an honorable discharge to complete the training.  

	e.  He is doing the best he can as a civilian.  He admits he messed up and it bothers him every day that he failed his family, his country, and himself.

	f.  He is a completely different person now.  Every Veterans Day he goes to the elementary schools in his area in his Army fatigues and answers the student's questions about the Army.  He also volunteers at his grandparent's Elderly Home by visiting patients including the old veterans who live there. 

	g.  He is very sorry for his immature behavior and if he could do things differently he would.

3.  The applicant provides copies of a page from the Army Discharge Review Board (ADRB) Case Report and a "Thank You" note from a teacher with a photograph of the applicant, in fatigues, in an elementary school classroom.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 January 2001.  He held military occupational specialty (MOS) 11M (Mechanized Infantryman).

2.  The available record shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  28 February 2002, for the wrongful use of marijuana and cocaine between 2 November and 3 December 2001; and

	b.  25 August 2003, for the wrongful use of cocaine between 12 and 16 June 2003. 

3.  On 9 September 2003, the applicant's commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for commission of a serious offense.  The reason for his proposed action was that on 3 December 2001, the applicant tested positive for marijuana and cocaine, and on 16 June 2003, he tested positive for cocaine.  The applicant was advised of his rights and of the separation procedures involved.

4.  He was advised by counsel of the basis for the contemplated separation action and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He indicated he would submit a statement in his own behalf.  There is no statement available for review with this case.

5.  On 9 September 2003, the applicant's commander recommended separation with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c.
6.  On 18 September 2003, the separation authority approved the chain of command's recommendation for discharge and directed the issuance of a General Discharge Certificate.

7.  On 30 September 2003, the applicant was discharged accordingly.  He had completed 2 years, 8 months, and 6 days of creditable active service.

8.  On 10 August 2012, the ADRB denied his request for a change in the character and/or reason of his discharge.  

9.  He provides a page from his ADRB Case Report which states, in part:  "The analyst noted the Specimen Custody Document for drug testing dated 
3 December 2001, contained the names of 12 Soldiers that were stated on the basis of a command directed (CO) urinalysis and the applicant was one of those 12 tested; he was the only one positive for cocaine and marijuana.  The analyst determined that the test code used (CO) was in all likelihood in error due to the number of Solders listed on the urinalysis collection document."

10.  Army Regulation 600-85 (Army Substance Abuse Program) provides Test Basis codes in paragraph 4-5.  Some of the codes used include:

	a.  "PO" which is the symbol for "Search or seizure/probable cause."  It includes searches ordered to collect evidence when there is probable cause to believe a Soldier possesses an illicit drug within their body.

	b.  "CO" means competence for duty and is used to determine if a Solider is competent to perform duty or may need counseling, rehabilitation, or medical treatment when there is reason to question the Soldier's competence based on aberrant, bizarre, or uncharacteristic behavior, breaches of discipline, and other similar behavior.  This test may be based on less than PO.

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, frequent incidents of a discreditable nature with civil or military authorities, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his general discharge to an honorable discharge based on the fact that he has changed, he is sorry for his immature behavior, and he is a completely different person now.

2.  Considering that the urinalysis Test Basis code "CO" means competency rather than command directed, the ADRB's discussion of that code is baseless.  There is no indication that the urinalysis results as they relate to the applicant were inaccurate.  

3.  The evidence of record shows the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, although an under other than honorable conditions discharge was normally considered appropriate for the authority and reason for his discharge, it appears the separation authority considered his overall record of service and, as such, directed the issuance of a general discharge.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20130007182



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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