IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130009456 


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 under honorable conditions (general) discharge to a fully honorable discharge. 

2.  The applicant states a medical misdiagnosis resulted in his behavior.  He is correctly diagnosed with Attention Deficit Disorder (ADD) and is working with his doctor on a finding of bipolar disease.  He sought treatment for his problems but he was sent back to his unit without proper medication before the incident.  His drug test failure was a result of poor judgment and acting out of frustration.  His father is 100 percent disabled from post-traumatic stress disorder (PTSD).  As a result, he abandoned the family when he (the applicant) was young.  His father did not even show up during airborne school graduation. 

3.  The applicant does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 19 October 1995.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman). 

3.  He was awarded or authorized the Army Service Ribbon, Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Bar. 

4.  He was assigned to the 1st Battalion, 30th Infantry, Fort Benning, GA.  He was promoted to private/E-2 in August 1996 and private first class/E-3 in October 1996. 

5.  On 27 May 1997, he participated in a unit urinalysis and his urine sample tested positive for marijuana.  

6.  On 23 July 1997, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  

7.  On 29 September 1997, he departed his unit in an absent without leave (AWOL) status.  He returned to military control on 2 October 1997.  

8.  On 27 October 1997, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 29 September to 2 October 1997 and willfully disobeying a lawful order. 

9.  On 26 November 1997, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  The specific reasons are cited as his being AWOL, disobeying a lawful order, and testing positive for marijuana.  He recommended a discharge under honorable conditions (general).

10.  On 9 December 1997, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures/rights that were available to him.  He also elected not to submit a statement in his own behalf.  He acknowledged he understood that:
* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions

11.  Subsequent to his acknowledgement, the applicant's immediate commander initiated separation action against him for misconduct in accordance with chapter 14 of Army Regulation 635-200.   The immediate commander further recommended a discharge under honorable conditions.  His intermediate commander recommended approval. 

12.  On 16 December 1997, subsequent to a legal review for legal sufficiency and consistent with the chain of command's recommendation, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense – with his service characterized as general under honorable conditions.  On 31 December 1997, the applicant was accordingly discharged.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, with his service characterized as under honorable conditions (general).  He completed 2 years, 2 months, and 12 days of creditable active military service. 

14.  On 4 March 2008, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of the discharge. 

15.  On 21 August 2008, the ABCMR denied his petition for a change to his Reentry and Separation Codes. 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 in effect at the time established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.
17.  Paragraph 3-7a of Army Regulation 635-200 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 evidence of record shows the applicant committed multiple serious offenses in that he was wrongfully used marijuana, disobeyed a lawful order, and was AWOL.  As such, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  There is no evidence in his records and he provides no evidence to support his contention that his serious offense resulted from a diagnosis of ADD or any medical condition.  Likewise, nothing in his records shows his father contributed to the misconduct.  Nothing in his records supports his argument that his current diagnosis of ADD or the potential diagnosis for a Bipolar Disorder was the reason he used illegal drugs or went AWOL some 16 years earlier.

3.  An honorable characterization is appropriate when the quality of a Soldier'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.  

4.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His actions at the time clearly brought discredit upon himself and the Army.  Therefore, he is not entitled to an honorable 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)                                         AR20130009456



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ABCMR Record of Proceedings (cont)                                         AR20130009456



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