BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130018540 


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 be upgraded.

2.  The applicant states:

	a.  In 2011, he was preparing for his expiration term of service (ETS) in the Army.  He had ETS orders and a terminal leave request that were pending approval by the battalion commander.  As part of his ETS process, he had just been reassigned to the medical platoon in Headquarters and Headquarters Company (HHC), [3rd Battalion, 509th Infantry, Joint Base Elmendorf Richardson (JBER), AK] where he proudly served as a medic.  His unit was preparing to go to the Yukon Training Area (YTA), AK, but due to his reassignment he would not be going with his infantry platoon.

	b.  One evening in May 2011, he loaned his car to Specialist (SPC) Y____, his barracks roommate, to go to Eagle River, AK.  SPC Y____ returned the following morning in time for the morning formation.  At the end of the duty day, all the medical platoon personnel were called to the platoon sergeant's (PSG) office and told of a surprise health and welfare inspection of the rooms of the personnel living in the barracks and their vehicles.

	c.  At the onset of the inspection, the noncommissioned officers (NCOs) directed their attention to dirty paperclips they found on SPC Y____'s futon.  After the PSG announced the vehicle inspection, SPC Y____ told him that he (SPC Y____) had bought spice from a smoke shop in Eagle River and they would find the spice and a pipe in the glove box of his (the applicant's) car.  The next thing he knew, they were told the U.S. Army Criminal Investigation Command (hereafter referred to as CID) was being called.  They were kept waiting in the hallway until 2200 hours and were then escorted by an NCO and CID agent to the CID building for processing and questioning.

	d.  They were kept awake in the waiting room until late in the evening.  The timeline is obscure due to the fact the questioning did not begin until around midnight and continued into early morning.  During this time, he was nodding off due to sleep deprivation.  He was asked if SPC Y____ or anyone else he knew was selling drugs and if anyone was currently smoking spice.  The manner in which he was being questioned made it evident that he was presumed culpable and involved with SPC Y____ in some fashion.  He was offered leniency if he could produce names but he could not as his only knowledge was that SPC Y____ was the only person he knew that smoked spice.  

	e.  The time he spent in interrogation was not clear because he had no concept of time.  After they were released, SPC Y____ told him that he ultimately told CID the truth that he had borrowed his (the applicant's) car, bought the spice and pipe, left them in the car, and he had nothing to do with it.

	f.  The next day the PSG told him that he was to made an "example" of "guilt by association" and that he had a choice between Uniform Code of Military Justice (UCMJ) action and court-martial action.  It was explained that under UCMJ action he would be subjected to whatever punishment the presiding officer decided as well as separation from the service with a general discharge.  Under court-martial action the charges could be dropped or he could be separated with a dishonorable discharge.  Due to intimidation, fear, and the possibility of getting kicked out of the Army, he opted for the non-punitive action, an Article 15, UCMJ.

	g.  When he was read the UCMJ and confined to the barracks, the PSG, Staff Sergeant (SSG) W____, made a permanent change of station (PCS) move to Georgia and he was replaced by SSG A_______.  SSG A_______ expressed dissatisfaction with the way his case was being handled but the Article 15 process had already been started.  He is convinced that if SSG A_______ had been the PSG at the time, the extreme measures taken against him would not have occurred. 

	h.  The first week of June 2011 he was sent to YTA while SPC Y____ was removed from his duties and placed on suicide watch.  At the end of the first week he was flown back to JBER, read his punishment, reduced to private (PVT)/E-1, confined for 30 days in an Anchorage jail, and separated from the Army with a general discharge.  He had served in Afghanistan just the year before and then he was kept in jail with thieves and drug dealers.
	i.  He is confident that his NCOs and officers never doubted his integrity and ability to function as a combat medic as evidenced by him being allowed to continue to work as a senior medic while SPC Y____ was immediately pulled from his duties.  The Article 15 he received was the most devastating blow to him as a Soldier because he was wrongly implicated, punished, destroyed, and ultimately humiliated by loss of grade, confinement, and discharge from the military institution that he served with unwavering faithfulness, loyalty, and sacrifice.  He was merely the wrong person in the wrong place at the wrong time.

3.  The applicant provides four statements of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 September 2007 and he held military occupational specialty 68W (Health Care Specialist).  

2.  He was assigned to HHC, 3rd Battalion, 509th Infantry, JBER, from 15 August 2008 to 15 January 2009.

3.  On 16 January 2009, he was assigned to the 725th Combat Support Battalion (CSB), JBER.  He served in Afghanistan from 10 March 2009 to 13 January 2010 while assigned to the 725th CSB.  He was promoted to the rank of SPC on 1 September 2009.

4.  On 20 May 2010, he was assigned to HHC, 3rd Battalion, 509th Infantry.

5.  His records contain a CID incident report, dated 8 April 2011, wherein it stated:

   a.  The HHC, 3rd Battalion, 509th Infantry acting commander directed a random health and welfare inspection of the medical platoon on 7 April 2011.  The platoon leader conducted an amnesty period and then began the search of the barracks.  About three paperclips were found in a futon in the barracks room the applicant and Private First Class (PFC) Y____ shared that appeared to have marijuana residual on the end tips.  In addition, 89 blank rounds and two live rounds of ammunition were found.  The CID was contacted and the applicant and PFC Y____ were escorted to the CID building where they were questioned and gave the CID permission to search their vehicles.

	b.  During the search of PFC Y____'s vehicle the CID found two full spice packets, two empty packets, and two pipes.  During the search of the applicant's vehicle the CID found one pipe and one unopened bag of spice.  Both PFC Y____ and the applicant admitted to CID that they used spice.  
6.  On 29 April 2011, court-martial charges were preferred against the applicant for one specification each of:

* violating a lawful general order by wrongfully possessing some amount of spice, a prohibited intoxicating substance on 7 April 2011
* violating a lawful general order by wrongfully using spice on divers occasions between 7 March and 7 April 2011

7.  He subsequently consulted with legal counsel and on 5 May 2011, he submitted an offer to plead guilty to the charges.  In the plea offer he acknowledged that:

	a.  After consulting with his defense counsel and being fully advised that he had a legal and moral right to plead not guilty and to place the burden of proving his guilt beyond a reasonable doubt upon the prosecution, he offered to plead guilty to both specifications on the condition his case was referred to a summary court-martial for disposition.

	b.  He further acknowledged that his legal counsel had advised him of the meaning of the guilty plea, that no person had made any attempt to force or coerce him into making the offer, and that his offer may become null and void if he withdrew from the agreement at any time.

8.  On 6 June 2011, he pled guilty to and was convicted by a summary court-martial of one specification each of:

* violating a lawful general order by wrongfully possessing some amount of spice on 7 April 2011
* violating a lawful general order by wrongfully using spice on divers occasions between 7 March and 7 April 2011

9.  The punishment imposed was reduction to PVT, confinement for 30 days, and a forfeiture of $978.

10.  On 20 July 2011, his battalion commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for the commission of a serious offense - wrongfully possessing spice.  The commander stated he was recommending he receive a general discharge.

11.  On 20 July 2011, he acknowledged receipt of the commander's notification.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct - abuse of illegal drugs, the type of discharge he could receive, its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  

12.  On 29 July 2011, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct with a general discharge.  On 1 September 2011, he was discharged accordingly.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (drug abuse), with an under honorable conditions (general) characterization of service.  

14.  On 7 December 2012, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined he was properly and equitably discharge.  

15.  The applicant provides four statements of support, one undated and three dated between 25 July 2011 and 15 July 2013, wherein three former unit members and his father all stated the applicant had been a dependable Soldier, had a positive attitude, never blamed anyone else for his error in judgment, volunteered to set up a small medical station while deployed to Afghanistan, and he should not be held accountable if UCMJ action was imposed because his roommate left an illegal substance in his (the applicant's) vehicle. 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

17.  Army Regulation 635-200, 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 confirms the applicant was convicted by a summary court-martial of two specifications of possessing and using spice, an illegal drug.  Accordingly, his commander initiated separation action against him.
2.  Notwithstanding his contention that the spice was not his and he was coerced by his PSG into accepting an Article 15, the evidence of record confirms that after court-martial charges were preferred against him he consulted with legal counsel and he was advised of the procedures and rights that were available to him.  He subsequently willingly pled guilty to possessing and using an illegal drug on the condition that his case was referred to a summary court-martial for disposition.  In addition, the CID report confirms illegal drugs were found in his and PFC Y____'s vehicles and that both he and PFC Y____ admitted to using spice. 

3.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  

4.  Based on his overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would merit an honorable discharge.  

5.  In view of the foregoing, he is not entitled to the 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)                                         AR20130018540



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ABCMR Record of Proceedings (cont)                                         AR20130018540



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