IN THE CASE OF:	  

		BOARD DATE:	  23 April 2014

		DOCKET NUMBER:  AR20130015386 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  He states he was unaware that he could request for an upgrade of his discharge.

3.  He provides two supporting statements and page 2 of the Department of Veterans Affairs (VA) Decision Document.

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 record shows he enlisted in the U.S. Army Reserve (USAR) on 23 June 2000.  On 15 March 2003, he was ordered to active duty in support of Operation Enduring Freedom.  He served in both Iraq and Kuwait from 14 May 2003 to 5 May 2004 and he was honorably released from active duty on 3 June 2004. 

3.  On 2 August 2004, he requested and received an enlistment waiver from the Iowa Army National Guard (IAARNG) for possession of drug paraphernalia.  He subsequently enlisted in the IAARNG and was discharged the same day.  He was returned to the USAR.  His discharge was listed as uncharacterized.

4.  The applicant's record is void of any Article 15s of the Uniform Code of Military Justice or disciplinary infractions.

5.  The complete discharge packet pertaining to the applicant's discharge proceedings under the provisions of Army Regulation 135-178 (Army Reserve and ARNG - Enlisted Administrative Separations) is not contained in his available military records.  However, on 17 December 2009, the applicant applied to the Army Discharge Review Board (ADRB) for a discharge upgrade.  Contained in the ADRB's Case Report, dated 29 June 2010, are memoranda:  subject:  Notification of Separation Proceedings Under Army Regulation 135-178, Chapter 12, Misconduct, acknowledgement of receipt of notice and notification of separation proceedings.  These documents show:

   a.  On 9 April 2007, the commandant notified the applicant that he was initiating action to separate him from the USAR for misconduct, abuse of illegal drugs.  He cited the applicant's positive urinalysis for THC use  on or about 
10 February 2007, as the reason for the discharge action.  He said the applicant's use of this illegal drug constituted an act of serious misconduct, which merited separation in accordance with Army Regulation 135-178, paragraph
12-1d.  He also stated he was recommending that the applicant receive a general, under honorable conditions characterization of service.

	b.  The acknowledgement of receipt of the notice of initiation of separation and the applicant's election of rights memoranda were unsigned and undated and no election was indicated.

	c.  On 12 July 2007, he was discharged from the USAR with an under honorable conditions (general) character of service.

6.  On 29 June 2010, after careful review of the applicant's application, military records, and all other available evidence, the ADRB determined that he was properly and equitably discharged. 
7.  He provided page 2 of his VA Decision Document that shows effective 14 May 2012, he was assigned a 50 percent disability rating for Post-Traumatic Stress Disorder (PTSD).

8.  The two supporting statements submitted by the applicant speak highly of the applicant's leadership ability and post service accomplishments.  One author stated that the applicant had a minor lapse in judgment after his deployment in Iraq.  The author from the VA offered that the applicant was diagnosed with PTSD and he believed the applicant was smoking marijuana to self-medicate the effects of his PTSD.

9.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and ARNG.  Paragraph 12-1 states a Soldier may be discharged for misconduct when it is determined that the Soldier is unqualified for further military service by reason of abuse of illegal drugs.  Discharge action normally will be based upon commission of a serious offense.  Characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted

   a. First-time drug offenders:  Soldiers in the grade of sergeant and above, and all Soldiers with 3 or more years of total military service Regular and Reserve will be processed for discharge upon discovery of a drug offense.
   
   b. Second-time drug offenders must be processed for discharge after a second offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his PTSD influenced his behavior.  There is no evidence and he has not provided any evidence to show he was suffering from PTSD prior to his discharge and these problems caused his indiscipline.  Therefore, his VA decision rating which shows he was assigned a 50 percent disability rating for PTSD almost 5 years after his discharge, is not sufficient evidence to justify upgrading his discharge.  

2.  Although a complete copy of his discharge packet is not available for review, the presumption of regularity must be applied.  He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  He has failed to submit evidence that would satisfy that requirement.

3.  Based on the foregoing, there is no 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)                                         AR20130015386





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015386



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1