BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020267 


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 reconsideration of an earlier request to upgrade his discharge to an honorable discharge.

2.  The applicant states through his member of Congress that:

* he was unfairly discharged and he has lost all of his benefits, including the GI Bill
* he was raised in a small town, completed high school where he took advanced classes, participated in sports, and attended college before deciding to join the Army
* he enlisted, completed training, became a Ranger, and he was eventually deployed to Afghanistan
* a superior found a vial of testosterone in his possession and he was given an Article 15
* the vial was sent off for testing along with a blood sample; the vial came back positive but his blood test came back negative
* he was sent to a drug treatment facility for rehabilitation which he completed and he was considered "rehabilitated"
* normal protocol for a "drug-related" issue resulted in relief from the Ranger Regiment and assignment to another special operations unit
* the individual who reported him began to treat him unfairly and began to tarnish his record
* he spent 2 months trying to defend himself and filed an Inspector General (IG) complaint
* the individual who reported him was given an order to stay away from him after an IG investigation
* he was told by several of his friends that the reporting individual pursued his Article 15 and his discharge due to promotion points
* legal advised him his discharge was minor and that he could easily get an upgrade
* he has applied twice for an upgrade and he been denied based on being "un-rehabilitated" even though he has provided his rehabilitation certificate

3.  The applicant provides:

* self-authored statement
* Congressional correspondence
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief
* Army Discharge Review Board decisional documents
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, Docket Number AR20120013632, dated 7 February 2013
* extracts of his discharge packet

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120013632, 7 February 2013.

2.  He provides a new argument that warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 27 September 2007.  He completed training and was awarded military occupational specialty (MOS) 68W (Health Care Specialist).

4.  On 30 June 2010, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for wrongfully using steroids on or about 14 May 2010.  

5.  On 26 July 2010, he underwent a mental status evaluation and he was cleared for any administrative action deemed appropriate.

6.  On 28 July 2010, he received counseling of possible separation in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Separation), chapter 14-12c, for serious acts of misconduct, for wrongfully using steroids.  

7.  On 9 August 2010, the applicant's National Registry Emergency Medical (EMT) Technician certificate was revoked as a result of his NJP for wrongful possession of a controlled substance.  It was determined that he represented a risk to public health and safety.  His certification as an EMT was a requirement for his MOS.

8.  On 9 August 2010, after consulting with counsel, he acknowledged the proposed separation action.  He also acknowledged he understood he could be issued a general discharge and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

9.  On 15 August 2010, the applicant's commander initiated action to separate the applicant for the commission of a serious offense, misconduct-use of illegal drugs, with a general discharge.

10.  On 17 August 2010, the applicant's counsel requested the pending chapter action be halted giving the applicant the time to pursue his appeal.  It was also requested, in the alternative, he be released from service as a Ranger and permitted to serve in the Army in a separate capacity in lieu of his separation.  

11.  On 15 September 2010, the separation authority approved the applicant's discharge and directed he receive a general discharge.

12.  He was discharged in pay grade E-3 on 23 September 2010, under the provisions of Army Regulation 635-200, paragraph 14-12c.  Item 26 (Separation Code) on his DD Form 214 shows the entry “JKQ.”  Item 28 on this form contains the entry, “Misconduct (Serious Offense).” 

13.  On 4 July 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation states in:

   a.  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 convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
   
   
	b.  Paragraph 14-12c provides for the separation of Soldiers for the commission of a serious offense of misconduct from the harsher penalties that may be imposed under the UCMJ.  The issuance of a discharge under other than other honorable conditions is normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

	c.  Paragraph 3-7a states an honorable discharge is 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 will be clearly inappropriate.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), prescribes the specific authorities (regulatory, statutory, or other directives), the
reasons for the separation of members from active military service, and the SPD codes to be used for those stated reasons.  The SPD of "JKQ" as shown on his DD Form 214 was appropriate when the narrative reason for involuntary discharge was "Misconduct (Serious Offense)" and the authority for discharge was Army Regulation 635-200, paragraph 14-12c.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant argues his requests for an upgrade were denied based on being "un-rehabilitated," the evidence shows the facts and circumstances of his discharge were carefully considered and the issue of being rehabilitated or un-rehabilitated was not an issue in the decision to discharge him or upgrade his discharge.

2.  As a result of his misconduct, his National Registry Emergency Medical Technician certificate was revoked and it was determined that he represented a risk to public health and safety.  His misconduct prevented him from maintaining credentials required for his MOS.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20120013632, dated 7 February 2013.



      _______ _  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)                                         AR20130020267



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ABCMR Record of Proceedings (cont)                                         AR20130020267



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