IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140010058 


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 honorable conditions (general) discharge.

2.  The applicant states he believes the character of service is unjust.  He experienced a one-time error in judgment after a year deployment and 28 months of service to our country. 

3.  The applicant does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 July 2010.  He completed training and he was awarded military occupational specialty 74B (Chemical Operations Specialist).

2.  He served in the United Arab Emirates from 8 May 2011 to 7 May 2012.  He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Overseas Service Ribbon.

3.  On or about 3 July 2012, he participated in a unit urinalysis and his urine sample tested positive for marijuana.   

4.  On 25 July 2012, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between on or about 3 June 2012 to 3 July 2012.  His sentence included reduction to E-1.

5.  On 6 September 2012, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against his in accordance with Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12(c) for misconduct-commission of a serious offense.  The specific reasons stated were his illegal use of marijuana between on or about 3 June 2012 and on or about 3 July 2012.   The immediate commander recommended a general, under honorable conditions discharge. 

6.  On 6 September 2012, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He understood that he was not entitled to an administrative board because he had not completed 6 years of service.  He also acknowledged 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 could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge
* he elected not to submit a statement on his own behalf

7.  Subsequent to his acknowledgement, on 7 September 2012, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200, for misconduct (wrongful use of marijuana).  The immediate commander further remarked that the applicant's retention would be detrimental to the unit's morale and effectiveness.  

8.  The applicant's intermediate commander thoroughly reviewed the separation packet and recommended immediate discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200 with an under honorable conditions (general) character of service.

9.  Consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct - commission of a serious offense and directed the applicant be given an under honorable conditions (general) discharge.  On 11 October 2012, the applicant was accordingly discharged.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.  He completed 2 years, 2 months, and 22 days of net active service.  Item 26 (Separation Code) of his DD Form 214 shows the code "JKK" and item 28 (Narrative Reason for Separation) shows the reason as "Misconduct-Drug Abuse."

11.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended that he was injured and in pain while was he deployed, and dealing with the pain in his foot took a toll on him.  However, on 15 November 2013, the ADRB found he was properly and equitably discharged.  As such, it denied his request for an upgrade of his discharge.

12.  The applicant again petitioned the ADRB and at a personal hearing on 19 May 2014, he contended that his discharge was based on a one-time infraction that occurred within 28 months of service with no other adverse action. The ADRB heard his testimony but found his discharge proper and equitable.  The ADRB again denied his request for an upgrade of his discharge.

13.  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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct.

	b.  Paragraph 3-7a 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 evidence of record shows the applicant committed a serious offense in that he used illegal drugs (marijuana).  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.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

2.  There is no evidence of record and he provides none to support his contention that he was wrongfully or unjustly discharged.  His use of illegal drugs clearly shows the quality of his service was diminished below that meriting an honorable discharge.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for upgrading his general discharge to an honorable 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)                                         AR20140010058



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ABCMR Record of Proceedings (cont)                                         AR20140010058



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