IN THE CASE OF:  	  

		BOARD DATE:  16 October 2014	  

		DOCKET NUMBER:  AR20140000524 


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 other than honorable conditions (UOTHC) discharge.

2.  The applicant states:

   a.  During his hearing, trial counsel wrongfully commented on his alleged misconduct, witness intimidation, obstruction of justice, and threats which are not included in the notification of separation nor found anywhere in the packet.
   
   b.  He and his counsel were unprepared to defend against the trial counsel's allegations without having prior knowledge of them throughout the various stages in the six months the case was building.
   
   c.  Trial counsel suggested the panel members could consider his conditional waiver an admission of guilt of the alleged misconduct; however, his waiver was based on a pre-trial negotiation between him and his counsel and as such, any mention of pretrial negotiations are strictly prohibited at trial in any court room, and therefore hindered or violated his constitutional due process rights.
   
   d.  The analyst before the Army Discharge Review Board (ADRB) stated the evidence in his case supported a conclusion his UOTHC discharge was too harsh, and as a result was inequitable.  The analyst found the length and quality of his service to include his combat service mitigated the discrediting entries in his service records and recommended his UOTHC discharge be upgraded to a general under honorable conditions discharge (GD).
3.  The applicant provides:

* Self-Authored Statement
* Special Court-Martial (SPCM) Order Number 8, dated 3 April 2012
* Memorandum dated 18 June 2012
* 8 Award, Appreciation, and Course Completion Certificates

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 19 November 2008.  He held military occupational specialty 92G (Food Service Operations Specialist).

2.  On 8 September 2011, a Special Agent, U.S. Army Criminal Investigation Command (USACIDC), prepared a final Criminal Investigation Division (CID) Report of Investigation (ROI).  It shows:

   a.  An investigation established probable cause to believe the applicant committed the offenses of wrongful possession and distribution of a controlled substance when he sold 15.488 grams of K2, containing the schedule I controlled substance JWH-018, to a CID Source for $60.00 in pre-recorded USACIDC funds.
   
   b.  The Trial Counsel, Office of the Staff Judge Advocate (SJA), opined probable cause existed to believe the applicant committed the offenses of wrongful possession and distribution of a controlled substance.

3.  On an unknown date, the applicant was arraigned for wrongfully distributing .17 grams of JWH-018, a scheduled I controlled substance.  On 1 February 2012, before an SPCM, proceedings were terminated and the charge and specification were withdrawn and dismissed without prejudice by the convening authority.

4.  On 2 April 2012, the unit commander initiated separation action against the applicant under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c(2) for distributing illegal drugs.  The applicant refused to acknowledge receipt of the notification.

5.  On 17 April 2012, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights indicating his options to:

* waive consideration of his case by an administrative separation board contingent upon receiving a GD
* waive personal appearance before an administrative separation board contingent upon receiving a GD
* not submit a statement on his own behalf
* request consulting counsel and representation by military counsel and/or civilian counsel at his own expense

6.  On 21 May 2012, the separation authority denied the applicant's request for a conditional waiver.  He appointed an administrative separation board to determine the appropriate disposition of the applicant’s elimination under the provisions of paragraph 14-12c(2) of Army Regulation 635-200.

7.  On 13 June 2012, an administrative separation board convened to determine if the applicant should be discharged from military service prior to his expiration of normal term of service (ETS).  After considering all of the evidence before it, the administrative separation board, by unanimous vote, recommended the applicant be separated from the Army with a UOTHC discharge for his wrongful distribution of .17 grams of JWH-018.

8.  On 18 June 2012, the defense counsel appealed to the separation authority for clemency to upgrade the applicant's characterization of service to a GD.  He based his request on the same reasons as indicated by the applicant in his request to this Board.

9.  On 19 June 2012, the trial counsel, in response to defense counsel's appeal, indicated:

	a.  he did not mention any allegations of additional misconduct of the applicant.  He commented on the confidential source's reasons for not wanting to testify and his paranoid state of mind.  He specifically stated he was not suggesting any wrongdoing on the applicant's part.  Further, the defense counsel made no objection to this argument at the hearing.

	b.  While he referenced the rejection of the conditional waiver, he did not suggest the panel members could consider the applicant's submission of it as evidence of alleged misconduct.  Additionally, he only referenced the document after it had been accepted into evidence and again, defense counsel made no objection of it being offered or referenced during hearing.

10.  On 2 July 2012, an administrative law attorney, Staff Judge Advocate, provided a legal review of the administrative board proceedings.  He stated:

	a.   The procedure used by the board was in accordance with the applicable regulation and the evidence provided supported the findings and recommendation made by the administrative separation board.

	b.  The summary transcript contained no mention by the recorder that the applicant committed any misconduct outside of the packet presented to the administrative separation board.  It is mentioned that the informant who cooperated with CID was afraid to testify due to possible paranoia and was fearful of the applicant's friends, not the applicant.

	c.  The Military Rules of Evidence 410 involves courts-martial and chapter 10 actions, not administrative separation boards.  When the applicant completed his election of rights form and agreed to waive his administrative separation board for a GD, the conditional waiver became a part of the record that the board was allowed to consider when making its recommendation.

	d.  He recommended adoption of the administrative separation board's recommendation to separate the applicant from service prior to his ETS date with a UOTHC discharge.

11.  The separation authority approved the findings and recommendations of the administrative separation board and directed that the applicant be separated under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct, with a UOTHC discharge.  On 23 July 2012, the applicant was discharged accordingly.

12.  The DD Form 214 issued to the applicant upon his discharge on 23 July 2012, confirms he was separated under the provisions of paragraph 14-12c)(2), Army Regulation 635-200, by reason of misconduct (drug abuse).  It shows that he completed a total of 3 years, 8 months, and 5 days of creditable active military service and that he held the rank of private/E-1 at the time of his discharge.

13.  On 14 January 2013, after having carefully reviewed the applicant’s record and the issues he presented, the ADRB concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable (HD) or a GD may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge UOTHC is normally considered appropriate for members separated under these provisions.

	b.  Paragraph 3-7a provides that an HD 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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded.  However, the evidence of record confirms a USACIDC investigation established probable cause to believe the applicant committed the offenses of wrongful possession and distribution of illegal drugs.  Through his misconduct, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an HD or GD.

2.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record also confirms the applicant's contentions presented in this case were initially heard and considered during his initial discharge process. His defense counsel appealed for clemency of the decision made by the administrative separation board based on technicalities, not on whether or not he committed the misconduct of which he was accused.  Howbeit, a legal review confirmed the procedures used by the separation board were in accordance with applicable regulation.  

4.  Finally, in respect to the applicant's claim that the ADRB analyst considered his UOTHC discharge was too harsh and recommended he receive a GD, this Board is not bound by the opinion of this official.  In fact, the ADRB did not adopt the opinion or recommendation made by its own analyst.  After careful consideration of the applicant's claims, it is determined his allegations are without merit.  Accordingly, there is no basis to grant 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)                                         AR20140000524





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ABCMR Record of Proceedings (cont)                                         AR20140000524



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