BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140001920 


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 was not given an opportunity to attend a treatment program or an opportunity to prove to his leadership that the mistake he made and admitted to making was a one-time lapse of judgment.  He had no previous problems and had recently medically reclassified into his new military occupational specialty (MOS).  He is now a business manager.  He works with the U.S. Marine Corps Toys for Tots Program year around.  He is a man of good character and does not believe he was given a chance or an opportunity to regain his honor.

3.  The applicant provides:

* DA Form 4187 (Personnel Action), dated 2 June 2008
* Certificate of Promotion to specialist, dated 1 July 2008
* Commander's Award for the U.S. Marine Corps Reserve Toys for Tots for 2011
* a letter, dated 2 July 2013, from his employer
* a DA Form 638 (Recommendation for Award) and a certificate for the Army Achievement Medal
* a Certificate of Appreciation from the Warrior Transition Battalion, Fort Campbell, KY
* a Certificate of Appreciation from the Disabled American Veterans
* various email between the applicant and his customers 
CONSIDERATION OF EVIDENCE:

1.  On 26 July 2006, he enlisted in the Regular Army for 6 years and 17 weeks.  He completed basic combat and advanced individual training and was awarded MOS 11B (Infantryman).  He was later awarded MOS 35M (Human Intelligence Collector).

2.  Warrior Transition Battalion, U.S. Army Medical Activity, Fort Campbell, KY Permanent Order Number 274-601, dated 30 September 2008, awarded him the Army Achievement Medal for meritorious service from 12 November 2007 to 
30 September 2008.

3.  On 29 July 2009, the Branch Manager, Army Substance Abuse Program (ASAP) notified the Commander, B Company, Brigade Special Troops Battalion that the applicant was to be referred to ASAP due to an incident involving cocaine on 14 June 2009.

4.  An undated DA Form 8003 (ASAP Enrollment) shows the applicant was referred to ASAP for a comprehensive assessment to determine whether or not he met the criteria for enrollment.  The reason for referral was shown as "tested positive for cocaine during urinalysis."  The results of the assessment are not available.

5.  On 1 September 2009, the applicant was counseled by his commander based on a recommendation that he be separated under the provisions of chapter 14 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  The applicant was advised that if he was discharged he could receive an honorable, general, or an under other than honorable conditions discharge.  If discharged with less than an honorable characterization of service he could encounter substantial prejudice in civilian life and it could affect civilian employment, veterans' benefits, and related matters.  

6.  On 2 September 2009, the applicant received a mental status evaluation at the Bayne-Jones Army Community Hospital, Department of Behavioral Health, Fort Polk, LA.  

	a.  The examiner found the applicant's:

* behavior to have no abnormal movements
* alertness/orientation to be fully alert, oriented to person, place, and 	situation
* mood to be angry
* thought process/content to be linear, logical and goal directed; no 	perceptual disturbance, no hallucinations, and no delusions
* memory to have no impairment

	b.  The examiner further determined the applicant had no current suicidal or homicidal thoughts, plans, or intentions.  The applicant had the capacity to understand and participate in the evaluation and was mentally responsible.  The evaluation did not reveal any psychiatric conditions that would impair his ability to participate in any administrative action.

7.  On 16 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, for commission of a serious offense.  The reason for the proposed action was the applicant's wrongful use of cocaine between on or about 11-14 July 2009.  His commander advised him 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

8.  On 17 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 of the basis for the contemplated separation action for commission of a serious offense.  He also acknowledged:

	a.  He understood he had no right to consideration of his case by an administrative separation board if his service was characterized no less favorable than general or honorable.

	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 a 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.

c.  That statements in his own behalf were not being submitted.

9.  On 24 September 2009, his commander recommended that he be separated from 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 specific reason for the action being recommended was the applicant's misconduct by using cocaine between on or about 11 - 14 July 2009.

	b.  The commander recommended he receive an honorable discharge.

10.  On 8 October 2009, his intermediate commander recommended that a rehabilitative transfer be denied and that the applicant's separation be approved with a general discharge.

11.  On 16 October 2009, the separation authority waived a rehabilitative transfer, approved the recommendation for discharge, and directed that he be furnished a General Discharge Certificate.  

12.  On 28 October 2009, he was discharged under the provisions of paragraph 14-12c(2) of Army Regulation 635-200.  He completed 3 years, 3 months, and 
3 days of active service that was characterized as under honorable conditions (general).  His service medical records were not available for review.

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

14.  He provided a letter, dated 2 July 2013, from his employer.  His employer stated the applicant:

* had proven to be very honest and dependable
* was mature and conscientious about his job
* regularly went above and beyond the call of duty, staying late or starting early whenever necessary
* had the maturity and positive attitude to diffuse any potential customer problems before they became a problem


15.  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.  On 29 July 2009, the applicant's commander was notified by the ASAP Branch Manager that the applicant was to be referred to ASAP due to an incident involving cocaine on 14 June 2009.  The date he was referred to ASAP and the results of the assessment are not shown in his military records.  However, he was not notified of the action to separate him until 16 September 2009 and he was discharged on 28 October 2009.  There is no evidence as to whether he was receiving treatment prior to being discharged.  His service medical records were not available for review.

2.  There is no evidence of drug dependence or addiction.  The applicant admitted his use was a one-time lapse of judgment.  During the processing of his separation action he did not submit a statement indicating he required or requested treatment for drug use.  Therefore, there is insufficient evidence to indicate he would have required treatment for his one-time cocaine use.

3.  According to Army Regulation 635-200 abuse of illegal drugs is serious misconduct.  Therefore, he was properly and equitably discharged in accordance with regulations in effect at the time.  It is clear the separation authority considered his service prior to the incident in that he directed a general discharge under honorable conditions where a discharge under other than honorable conditions was normally considered appropriate.  The available evidence contains no indication of procedural or other errors that would have jeopardized his rights.


4.  Due to his serious misconduct he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  The applicant's statements concerning his post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge.  

6.  In view of the above, there is an insufficient basis upon which to upgrade his service to honorable.

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)                                         AR20140001920



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ABCMR Record of Proceedings (cont)                                         AR20140001920



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