IN THE CASE OF:  

		BOARD DATE:  25 November 2014

		DOCKET NUMBER:  AR20140007409 


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 an honorable discharge.

2.  The applicant states he was discharged after serving in the Army for 6 years.  He tested positive on a urinalysis after returning from leave that was taken after his 15-month deployment to Iraq.  There was a no tolerance policy in effect at the time; but now no one is getting discharged the way he did for the same reason.  He has no police record of any type for misconduct since leaving the military.  His Montgomery GI Bill was taken away when he was discharged.  He believes he deserves to get a good education for all the work he did in the Army.  His goal is to return to school and get a business degree and live a good life.

3.  The applicant provides copies of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Résumé

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 June 2005.  He held military occupational specialty 11B (Infantryman).  He served in Iraq from 23 October 2006 to 6 January 2008.

3.  On 3 July 2008, his immediate commander notified him of his intent to initiate separation action against him for misconduct by commission of a serious offense under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c).  The commander stated the applicant tested positive for "d-amphetamines" on 21 July 2006 and for marijuana on 
20 February 2008.  The commander further stated the applicant failed to report to his appointed place of duty on several occasions between 17 April and 2 May 2008.

4.  The applicant acknowledged receipt of the separation notification action and consulted with counsel.  He indicated he would not submit a statement in his own behalf. 

5.  The applicant's immediate commander initiated separation action. 

6.  The battalion and brigade commanders recommended a general discharge.

7.  The separation authority approved the separation and directed he received a general discharge.

8.  The applicant was discharged effective 7 August 2008.  He had completed 
3 years, 1 month, and 22 days of active duty service.  His DD Form 214 shows he was discharged for misconduct with his service characterized as under honorable conditions.  

9.  On 28 January 2010, the Army Discharge Review Board denied his request for an upgrade of his discharge. 

10.  The applicant provided a copy of his Résumé as a Professional Artist and Gallerist.


11.  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 members for misconduct.  Specific categories include commission of a serious offense.  A serious offense is one which the circumstances warrant discharge and a punitive discharge is or would be authorized for the same or a closely related offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions (UOTHC) is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

	b.  Paragraph 3-7a states 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 evidence of record shows the applicant committed a serious offense after twice abusing illegal drugs.  Accordingly, his commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.

2.  The governing regulation specifies that a UOTHC discharge is considered normal.  Therefore, the fact that the applicant received a general discharge is considered adequate recognition of the mitigation arising from his service.

3.  The accomplishments listed on the applicant's Résumé are acknowledged; however, they do not mitigate the conduct that led to his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  Granting of veterans' benefits is not within the purview of the ABCMR.

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 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)                                         AR20120009372



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ABCMR Record of Proceedings (cont)                                         AR20140007409



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