BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140010870 


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, in effect, an upgrade of his general discharge (GD) to a fully honorable discharge (HD).

2.  The applicant states:

* Evidence in his record shows he received an Article 15 for wrongful use of cocaine and a positive urinalysis for both cocaine and marijuana
* The Article 15 and the positive urinalysis were one in the same and they were not separate incidents
* He was to report to Fort Hood, TX, sometime in early February 2009
* He went absent without leave (AWOL) and he turned himself in sometime in June 2009
* He was escorted to the airport and he was flown to Fort Knox, KY, to out-process
* The facility was similar to jail as you are not able to go outside except for designated times during the day and you are stuck in a room under supervision for 12 hours a day
* He was nothing like the other Soldiers their waiting to be out-processed
* He waited 1 week until the day finally came when he was out-processed
* When the day came he was never called and told that they were not able to pull his paperwork and he would have be report directly to Fort Hood, TX
* He was then sent to Fort Hood, Texas, and he was in constant contact with his first sergeant
* He went to the reception station where he waited around for about 1 week and they were not able to fix whatever clerical issue that was causing him not to be put back into the ranks
* After reporting to his unit, he was told that he had been completely removed from military ranks
* He aspires to one day reenter the Army; however, he understands he has royally messed up

3.  The applicant provides DA Form 4856 (Developmental Counseling Form) dated 1 December 2009 and page 4 of the Army Discharge Review Board (ADRB) – Case Report and Directive.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 August 2008.  He completed training as a chemical operations specialist.

2.  On 29 September 2009, the applicant accepted nonjudicial punishment (NJP) for wrongfully consuming alcohol on 21 July 2009, under the age of 21 years old and for being AWOL from on or about 20 February until on or about 26 June 2009.

3.  On 1 December 2009, the applicant was counseled for wrongful use of dangerous drugs (marijuana and cocaine).  He was told that he tested positive for cocaine during a urinalysis conducted on 16 November 2009.  He was told that he was in violation of United States Army Policy and the criminal and civil codes of the United States.  He was told that his behavior would not be tolerated and that he had violated the trust of his company and the Army with his irresponsible behavior.  He was reminded that all Soldiers identified as drug users have to be processed for separation from the service for misconduct – abuse of illegal drugs which would more than likely be characterized as a discharge under other than honorable conditions.  He was told the following:

* A flag was initiated effective 1 December 2009 suspending all favorable personnel actions
* He was being command referred to the Army Substance Abuse Program (ASAP), effective 7 December 2009
* He was being recommended for a field grade Article 15, in which the battalion commander retained Uniform Code of Military Justice authority over all drug- related incidents
* An administrative separation action was being initiated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c (Commission of a Serious Offense), abuse of illegal drugs and processed to the separation authority

4.  On 29 January 2009, the applicant accepted NJP for wrongful use of marijuana on or about 17 October 2009.

5.  On 8 February 2010, the applicant was notified that he was being recommended for discharge for misconduct – commission of a serious offense.  The commander cited AWOL from on or about 20 February to on or about 26 June 2009 and testing positive for marijuana and cocaine as the basis for his recommendation.  He acknowledged receipt of the notification and after consulting with counsel, he elected not to submit a statement in his own behalf.

6.  The appropriate authority approved the recommendation for discharge on 19 February 2010 and directed the issuance of a general discharge.  On 10 March 2010, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct – commission of a serious offense.  He completed 1 year, 6 months, and 21 days of net active service this period.  He received a General Discharge Certificate.

7.  On 4 April 2012, ADRB denied the applicant's request for an upgrade of his GD to an HD.  On 6 November 2013, the ADRB denied the applicant's request for an upgrade of his discharge and a change of his narrative reason for separation.

8.  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 minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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 is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a GD if such is merited by the Soldier's overall record.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, he has not shown error or injustice in the characterization of his service.

2.  The evidence of record shows he accepted NJP on 29 September 2009 for wrongfully consuming alcohol.  He accepted NJP on 29 January 2010 for wrongfully using marijuana and cocaine.  He was also AWOL from on or about 20 February to on or about 26 June 2009.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority directed the issuance of a GD.

3.  The available evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge he received was generous based on his overall record of service.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20140010870



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ABCMR Record of Proceedings (cont)                                         AR20140010870



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