IN THE CASE OF:	  

		BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000271 


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 general discharge to a fully honorable discharge or a medical discharge.

2.  The applicant states that he started having problems due to noncommissioned officers soliciting sexual favors and using authority to force Soldiers into homosexual acts.  He tried everything to get away from his unit and was mistreated because he stood up for himself.  He finally got the help he needs and goes to treatment for post-traumatic stress disorder (PTSD) and military sexual trauma (MST). 

3.  The applicant provides no additional documents with his application.

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 enlisted in the Regular Army on 16 March 2004 for a period of 
3 years and training as an automated logistical specialist.  He completed his training and was transferred to Korea where he served a 1-year tour and was then transferred to Fort Hood, Texas.  He reenlisted on 21 March 2006 for a period of 4 years.

3.  On 26 June 2006, nonjudicial punishment was imposed against him for the wrongful use of marijuana and being drunk and disorderly.

4.  On 11 July 2006, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14 due to misconduct – commission of a serious offense. 

5.  After consulting with defense counsel, the applicant elected not to submit a statement in his own behalf.

6.  On 2 August 2006, the appropriate authority approved the recommendation for discharge and directed that he be furnished a general discharge.

7.  Accordingly, on 17 August 2006, he was discharged under honorable conditions under the provisions of Army Regulation 635-200, chapter 14, due to misconduct (Drug Abuse).  He had served 2 years, 5 months, and 2 days of active service and there is no evidence in the available records to show that he had any unfitting conditions that warranted separation under the Physical Disability Evaluation System (PDES).

8.  On 23 March 2007, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and contended at that time that he had been to a club with friends and the designated driver had packed marijuana in his cigarettes and everyone smoked his cigarettes without knowledge that they contained marijuana.  He was picked as one of the people to submit a urine sample during a random urinalysis and came up positive.  He also states that the driver admitted to the U.S. Army Criminal Investigation Command that he had provided the marijuana without the others having knowledge of it, but he was still punished.

9.  On 26 March 2008, after reviewing all of the available evidence, the ADRB determined that the applicant’s discharge was proper and equitable under the circumstances and voted unanimously to deny his request.



10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

11.  Paragraph 3-7a of Army Regulation 635-200 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 applicant's administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the characterization and the narrative reason for discharge were appropriate for the circumstances of his case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offenses and the fact that he offered no mitigating circumstances at the time.  Further, he did not mention the issue of MST when given the opportunity to submit a statement in his behalf at the time (which he elected not to do) or when he applied to the ADRB.  He has since offered two different sets of mitigating circumstances in his attempts to have his discharge upgraded, but he has provided no evidence to support either.

4.  The applicant's overall service simply did not rise to the level of a fully honorable discharge and he has not provided any evidence to show he was eligible for consideration for separation under the PDES. 

5.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20140000271



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ABCMR Record of Proceedings (cont)                                         AR20140000271



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