IN THE CASE OF:	  

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130015922 


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 he was unjustly given a general discharge.  He believes his post-traumatic stress disorder (PTSD) is due to situations he experienced in the military.  He suspected his wife was having an affair and they both went to counseling.  He then volunteered to go to Kosovo.  Before leaving for Kosovo, agents of the U.S. Army Criminal Investigation Command (also known as CID) stopped him and indicated he may have to testify at his wife's court-martial.  After this experience, his life was in turmoil and his nerves and trust were shattered.  Because his post was small, everyone knew of his situation.  He requested a transfer but this was denied.  He had planned on staying in and retiring from the military. 

3.  The applicant provides multiple statements of support. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 September 1999 and he was trained in and held military occupational specialty (MOS) 88M (Motor Transport Operator). 

2.  He was assigned to Headquarters and Support Company, 94th Engineer Combat Battalion (Heavy), Germany.  He was awarded or authorized the Army Service Ribbon.
3.  His records reveal an extensive history of negative counseling for various infractions, including: 

* being absent without official leave
* failure to obey an order or regulation
* improper operation of a motor vehicle
* suspension of check cashing privileges
* failure to report
* multiple instances of disobeying orders
* missing drug and alcohol counseling appointment

4.  On 19 May 2000, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to be present at the morning formation. 

5.  On 21 August 2000, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order not to consume alcohol and being found drunk on duty.  

6.  On 29 January 2001, he was apprehended by Military Police for driving while under the influence of alcohol. 

7.  On 6 March 2001, he participated in a unit urinalysis and his urine sample tested positive for marijuana.  

8.  On 4 May 2001, he accepted NJP under the provisions of Article 15 of the UCMJ for driving a vehicle while drunk, wrongfully using marijuana, and breaking restriction. 

9.  On 24 June 2001, 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), paragraph 14-12c, for misconduct - commission of a serious offense.  The specific reasons are cited as his wrongful use of marijuana and operating a vehicle while drunk.  He recommended the issuance of an under honorable conditions (general) discharge. 

10.  On 27 June 2001, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and/or a personal appearance before a separation board.  He acknowledged he understood that:

	a.  He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

	b.  He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

11.  Subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation      635-200, paragraph 14-12c, for misconduct.  The chain of command recommended approval of the discharge action. 

12.  On 12 July 2001, 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 an under honorable conditions characterization of service.   

13.  On 19 July 2001, the applicant was accordingly discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (serious offense) with an under honorable conditions characterization of service.  He completed 1 year, 10 months, and 11 days of net active service this period.  

14.  On 3 February 2013, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge and/or change in the reason for his discharge.  He contended that his superiors in the chain of command were committing adultery on him. 

15.  On 15 August 2013, after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged.  As a result, the ADRB unanimously denied his petition for an upgrade of his discharge.

16.  He submitted multiple letters of support and/or character reference letters from his brother, wife, father, and friend.  The authors comment on the applicant's abstinence from drugs and alcohol.  They also mention that he is involved in the community and/or school, and that the misconduct that led to his separation is out of character. 
17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 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.

	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 evidence of record shows the applicant committed serious offenses, specifically wrongfully using marijuana and operating a vehicle while drunk.  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 none to show he suffered from PTSD.  Likewise, his records do not contain any evidence and he provides none to show his misconduct was caused by any bona fide diagnosed behavioral health issue.  Furthermore, when his commander advised him of the initiation of separation action, he neither raised any behavioral health issues nor submitted a statement on his own behalf.  

3.  There is no evidence in his records that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The available evidence shows he was fully able to perform the duties of his grade and/or MOS and he was fully qualified for discharge.  

4.  He was not discharged because of PTSD or any behavioral health issue.  He was discharged because he committed a serious offense.  A discharge of this nature normally results in an under other than honorable conditions characterization of service.  He received a general discharge.  This was neither unjust nor harsh.  On the contrary, given his extensive history and seriousness of his misconduct, some of which are triable by a court-martial, it appears his chain of command was lenient.  

5.  The reason for his discharge (misconduct – commission of a serious offense) was not related to any medical conditions (PTSD) he now claims and there were no other compelling reasons for the chain of command to initiate disability processing.  The nature of the applicant's misconduct (drugs and drinking) had no relation to any medical condition he now claims, and he presented no compelling evidence that other circumstances warranted disability processing over administrative separation.

6.  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)                                         AR20130015922





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015922



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1