IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140001190 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* Item 18 (Remarks) – "Member Has Completed First Full Term of Service"
* Item 24 (Character of Service) – honorable
* Item 28 (Narrative Reason for Separation) – deletion of the entry, "Misconduct (Drug Abuse)"

2.  The applicant states, in effect:

   a.  His discharge was inequitable because it was based on one isolated incident in 48 months of service without any other adverse actions.  While working in the personnel office and processing personnel actions he witnessed several other Soldiers who committed the offense that he committed, more than once, and they were not eliminated from the Army.  

   b.  When Soldiers fail a urinalysis, elimination paperwork is initiated.  When Soldiers are involved in alcohol-related offenses, elimination paperwork is not initiated; that is unfair.  He went through the Army Substance Abuse Program and continued treatment after he completed the program to ensure sobriety.  Neither his psychiatrist nor his substance abuse counselor were asked if he was making progress or if they saw a potential threat in his ability to be combat ready due to the fact that he was categorized as a substance abuser.
   
   c.  On 18 August 2011, the command sergeant major and battalion commander advised him that they had decided to retain him and the elimination would be suspended for 60 days, after which he would be able to take terminal leave.  They based their decision on the fact that they knew he was truly sorry and understood the magnitude of his offense and the embarrassment that he had caused.  They took into consideration his work productivity had not decreased and his ability to lead Soldiers was not compromised.

   d.  Less than two weeks later, on 26 August 2011, he was advised of his elimination action and that he would receive orders in about 3 weeks.  On 
29 August 2011, he received orders for his elimination from the Army, effective 
6 September 2011.  Throughout his service he dedicated himself completely to his unit and to his country.

   e.  Since his separation he has been employed as a human resources analyst for the Museum of Modern Art from 12 December 2011 until the present.  He has not been in any trouble with the law and he has been a productive member of society.  Getting his discharge upgraded is a very important goal.  He understands that he has made a mistake and the consequences of that mistake; however, the characterization of his service was determined by one isolated incident and not his overall record of his service.  He worked in the S1 office as a human resource sergeant, he processed numerous Reports of Favorable Personnel Action and initiated numerous chapter packets.  He never witnessed someone being separated after their first offense for the reason he was separated.  His separation was inequitable and unjust.  He takes pride in himself as a man, and now as a veteran.  He would just like the character of his service to be determined fairly.

3.  The applicant provides copies of the following:

* Separation Under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2) memorandum
* completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* letter from the Army Review Boards Agency (ARBA)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for 4 years and 21 weeks (approximately 4 years, 4 months, and 26 days) on 19 June 2007.  He served as a human resources specialist.  He was promoted to pay grade E-5 on 1 March 2010.

2.  He received negative counseling statements on 7 and 8 April 2011 for failing to go to his appointed place of duty on two occasions and possible initiation of separation action.

3.  On 28 April 2011, his command was notified of his positive urinalysis.

4.  On 29 April 2011, he received counseling for the positive urinalysis, an evaluation by behavioral health, and he was recommended for an Article 15.

5.  A Report of Mental Status Evaluation, dated 11 May 2011, shows he was diagnosed with an anxiety disorder, not otherwise specified, that met medical retention standards.  He was psychiatrically cleared for chapter 14 action.  

6.  On 1 June 2011, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongful use of marijuana between 10 March and 8 April 2011.  

7.  On 8 June 2011, he was reduced to pay grade E-4.

8.  On 20 July 2011, the applicant’s company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 
14-12c(2), for misconduct, with a general discharge.  He stated the reasons for the proposed action were the applicant's wrongful use of marijuana and failing to report to his appointed place of duty multiple times.  He advised the applicant of his rights.

9.  On 20 July 2011, after consulting with counsel, the applicant acknowledged the proposed separation action.  He waived his rights and elected not to submit a statement in his own behalf.  

10.  On 21 July 2011, the applicant's company commander recommended the applicant be separated prior to his expiration term of service (ETS) date.

11.  His records contain a separation memorandum, dated 21 July 2011, wherein the applicant's battalion commander recommended the applicant be retained until his ETS date (November 2011) with terminal leave starting in September 2011.  The battalion commander stated the applicant was a good Soldier who made a bad choice influenced by a family member.

12.  On 26 August 2011, the separation authority approved the applicant’s discharge under provisions of Army Regulation 635-200, paragraph 14-12c(2), 
and directed the issuance of a general discharge, prior to his ETS date.

13.  On 6 September 2011, he was discharged accordingly in pay grade E-4.  He was credited with completing 4 years, 2 months, and 18 days of net active service.  His DD Form 214 lists in:

* Item 18 – "Member Has Not Completed First Full Term of Service"
* Item 24 – "Under Honorable Conditions (General)"
* Item 28 – "Misconduct (Drug Abuse)"

14.  On 9 April 2012, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.

15.  He provided a copy of a letter, dated 14 January 2014, wherein ARBA advised him that the ADRB had previously reviewed his case; therefore, he could request a personal appearance with the ADRB or apply to the ABCMR. 

16.  Service from 19 June 2007 through 13 November 2011 equals 4 years and 21 weeks, which is what was required for him to complete his first period of service.

17.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that would be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It established standardized policy for preparing and distributing the 
DD Form 214 (Certificate of Release or Discharge from Active Duty).  The regulation stated:

   a.  Item 18 – would contain the mandatory entry:  "Soldier (Has) (Has Not) Completed First Full Term of Service"; a Soldier should not be considered to have completed the first full term of active service if separation occurred before the end of the initial contracted period of service;
   
   b.  Item 24 – would list the characterization or description of service as determined by directives authorizing separation as one of the following:  honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, or uncharacterized; and

   c.  Item 28 – would list the narrative reason for separation based on regulatory or other authority.




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

   a.  Paragraph 14-12c(2) – Soldiers would be separated for misconduct for abuse of illegal drugs.  The separation reason in all separations authorized by this paragraph will be "Misconduct (Drug Abuse)."  An under other than honorable conditions was normally considered appropriate; however, a general, under honorable conditions, could be granted or an honorable discharge may be granted if such was merited by the Soldier's overall record.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  With respect to correction of item 18 of his DD Form 214 to show he completed his first full-term of service, the evidence shows he enlisted for 4 years and 21 weeks.  The applicant would have been required to serve until approximately 13 November 2011 to have completed his first full term of service. He was discharged on 6 September 2011.  Therefore, item 18 of his DD Form 214 contains the correct mandatory entry.  He is therefore not entitled to the requested relief.  

2.  With respect to correction of item 24 of his DD Form 214, the evidence shows his company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for chapter 14, with a general discharge for the applicant's wrongful use of marijuana and failing to report to his appointed place of duty multiple times.  

3.  While his battalion commander recommended he be retained until his ETS, the separation authority was within his rights to order his separation prior to his ETS.

4.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  

5.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.  Therefore, he is not entitled to an upgrade of his discharge or correction of item 24 of his DD Form 214.

6.  His contentions and desire to have his general discharge upgraded is acknowledged; however, the type of discharge an individual receives based solely on other individual's retention and/or separation processing is not normally changed.  The basic regulation which provided policy and guidance to this Board states the ABCMR will consider individual applications that are properly brought before it and will decide cases on the evidence of record.  This essentially means that cases are considered and the evidence is judged on its own merits.  The applicant’s misconduct was not limited to one instance of drug use.

7.  With respect to correction of items 28 of his DD Form 214, the evidence shows the applicant committed a serious offense in that he used illegal drugs.  Absent the illegal use of drugs, there was no fundamental reason to separate him.  The underlying reason for his separation was the use of illegal drugs.  He was accordingly discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct (drug).  The entry in item 28 of his
DD Form 214 is appropriate considering all of the facts and circumstance of his discharge.  There is no error or unjust, therefore, 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)                                         AR20140001190



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ABCMR Record of Proceedings (cont)                                         AR20140001190



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