IN THE CASE OF

		BOARD DATE:	    24 July 2014

		DOCKET NUMBER:  AR20130019248 


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.  The applicant states he believes his unit unfairly characterized his action while holding other Soldiers to much lower standards of professionalism and integrity.  The command sergeant major (CSM) was relieved for sexual harassment while deployed to Camp Taji, Iraq against female Soldiers of his unit.  Other Soldiers of his unit who produced positive urinalysis were allowed to remain on active duty.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 24 November 2009.

CONSIDERATION OF EVIDENCE:

1.  On 5 July 2006, he enlisted in the Regular Army for 4 years.  He served in Iraq from 20 May 2007 to 27 January 2008.

2.  On 5 September 2008, he was tried before a summary court-martial.  He was found guilty of:

* two specifications of being absent without leave
* wrongfully using cocaine



3.  He accepted nonjudicial punishment (NJP) on:

* 2 December 2008 for wrongfully using a controlled substance
* 2 July 2009 for missing an accountability formation and missing a medical appointment

4.  On 25 September 2009, his commander notified him that action was being initiated to separate him under the provisions of Section III, chapter 14 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), for commission of a serious offense.  The reason for the proposed action was the applicant's having tested positive for D-Methamphetamine on or about 12 August 2008.  In addition, he had several other offenses which included multiple failures to repair (FTRs), missing multiple appointments, failing to report to extra duty, and disobeying an order from a noncommissioned officer (NCO).  The commander recommended that he receive a general discharge.  The commander 
advised the applicant of his right to:

* consult with counsel
* submit statements in his own behalf 
* obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative board if he had 6 or more years of active and reserve military service
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge
* submit a conditional waiver of his right to have his case heard before an administrative separation board

5.  On 29 September 2009, after being advised by his consulting counsel of the basis for the contemplated action to separate him, he submitted a statement acknowledging he had been advised by his consulting counsel of the basis for the contemplated separation action for commission of a serious offense.  

	a.  He waived:

* consideration of his case by an administrative separation board
* a personal appearance before an administrative separation board
* submission of statements in his own behalf 

	b.  He understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as the result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

6.  On 19 October 2009, his commander recommended that he be released from custody and control of the U.S. Army prior to the expiration of his current term of service under the provisions of paragraph 14-12c of Army Regulation 635-200.

	a.  The applicant tested positive for D-Methamphetamines and has had several other offenses, including multiple FTRs, missed appointments, failure to show for or late for extra duty and disobeying orders from an NCO.

	b.  The applicant had been counseled and through subsequent behavior had demonstrated a lack of acceptance of rehabilitative measures.

7.  On 26 October 2009, the appropriate authority approved the recommendation for discharge and directed his service be characterized as under honorable conditions.

8.  On 24 November 2009, he was discharged under the provisions of 
paragraph 14-12c(2) of Army Regulation 635-200.  He completed 3 years, 
4 months, and 20 days of active service that was characterized as under honorable conditions (general).

9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 21 October 2011, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Chapter 14 dealt with separations for various types of misconduct.  Paragraph 14-12c(2) provided for the separation of a Soldier by reason of the commission of a serious offense, which included drug abuse.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends other Soldiers in his unit were held to much lower standards of professionalism and integrity than he was.  Other Soldiers of his unit who produced positive urinalysis were allowed to remain on active duty.  The CSM was relieved for sexual harassment against female Soldiers.  However, the applicant has not submitted any substantive evidence that would corroborate any of his contentions.  It is clear his unit attempted to rehabilitate him as separation action was not initiated until after his third drug offense.

2.  He contends his unit unfairly characterized his discharge.  However, a discharge under other than honorable conditions was normally considered appropriate when a member was discharged under the provisions of chapter 14 of Army Regulation 635-200.  Therefore, he was treated more than fair as it is clear his commander considered his earlier service in that he recommended the applicant be discharged with a general under honorable conditions discharge.

3.  He accepted NJP on two occasions, had a summary court-martial conviction, and he did not complete the term of service he contracted for.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  In view of the above, there is an insufficient basis upon which to upgrade his discharge 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)                                         AR20130019248



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019248



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1