IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140016096 


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.

2.  The applicant states that shortly after returning from an overseas deployment he was arrested under the suspicion of driving under the influence (DUI).  During the same month he received an American Red Cross message informing him that his father had died.

   a.  He states that he did not receive nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for the incident that resulted in his discharge.  

   b.  Prior to adjudication of his case in court, the commander initiated separation action against him.  He states that he held the rank of sergeant (SGT)/pay grade E-5 and he was discharged without the opportunity to appear before an administrative separation board.

   c.  He adds that several other Soldiers were also cited for DUI and they were given more lenient treatment.  He concludes that he was treated unfairly.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).


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 U.S. Army Reserve (USAR) on 1 July 1999 for a period of 8 years and he further enlisted in the Regular Army (RA) on 9 July 1999 for a period of 5 years.  He was awarded military occupational specialty (MOS) 21B (Combat Engineer).

   a.  He served in Iraq in support of Operation Iraqi Freedom from 2 April 2003 through 1 April 2004.

   b.  He was promoted to sergeant SGT (E-5) on1 January 2004.

3.  On 2 June 2004, it was determined the applicant was not in compliance with the provisions of Army Regulation 600-9 (The Army Weight Control Program).

4.  A Killeen Police Department Incident/Investigation Report, dated 8 June 2004, shows the applicant was cited for the following offenses:

* driving while intoxicated
* possession of a controlled substance (Group 1)
* suspected stolen property (Texas license plates, registration sticker, and 1986 green Oldsmobile Cutlass)

5.  On 27 August 2004, Brigadier General N____ V. B____, Assistant Division Commander, 4th Infantry Division (Mechanized), Fort Hood, TX, issued a written reprimand to the applicant for driving a motor vehicle in Killeen, TX, while intoxicated.  He was advised that the reprimand was imposed as an administrative measure and not as punishment pursuant to the UCMJ.

   a.  On 15 September 2004, the applicant acknowledged receipt of the written reprimand and elected not to make or submit statements on his own behalf.
   b.  On 15 November 2004, the issuing authority directed the reprimand be filed in the applicant's Official Military Personnel File and in his unit file.

6.  On 20 September 2004, the company commander notified the applicant that he was recommending him for separation under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Misconduct), paragraph 14-12c, for commission of a serious offense.

   a.  The reasons for the commander's proposed action were the applicant's arrest for driving while intoxicated and possession of a controlled substance.  The commander noted the applicant was counseled and through subsequent behavior he had demonstrated a lack of acceptance of rehabilitative measures.

   b.  The applicant was advised of his rights and the separation procedures involved.  The commander also informed him that he was recommending a general characterization of service.

	c.  The applicant acknowledged receipt of the commander's notification and that he had been advised of his right to consult with counsel.

7.  Following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him.

   a.  He acknowledged, "I understand that if I have 6 years of total active and reserve military service on the date of initiation of the recommendation for separation under the provisions of AR 635-200, Chapter 14, I am entitled to have my case heard by an administrative separation board.  I understand that if I have less than 6 years of total active and reserve military service at the time of initiation of recommendation for separation, I am not entitled to have my case heard by an administrative separation board unless I am being considered [for a characterization of discharge] under other than honorable conditions."

   b.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him.

   c.  The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could make application to the Army Discharge Review Board (ADRB) or ABCMR for upgrading his discharge.  However, an act of consideration by either board did not imply that his discharge would be upgraded.

	d.  He elected to submit a statement in his own behalf.
	e.  The applicant and his counsel placed their signatures on the document on 20 September 2004.

   f.  A review of the applicant's statement shows that he acknowledged that everyone should be held accountable for their actions, he made a decision that led to the events, and he expressed regret for bringing discredit upon the U.S. Army and his unit.  He explained that he went through an emotional crisis with the loss of his grandfather and then his father.  He acknowledged that he acted irresponsibly as a noncommissioned officer (NCO).  He requested the opportunity to regain control of his life and continue to serve in the U.S. Army.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action for misconduct based on commission of a serious offense with a general discharge.

9.  On 29 September 2004, the separation authority approved the commander's recommendation for the applicant's discharge for misconduct based on commission of a serious offense and directed that his service be characterized as under honorable conditions.

10.  The applicant's DD Form 214 shows he entered active duty this period on
9 July 1999 and he was discharged on 20 October 2004 under honorable conditions under the provisions of AR 635-200, paragraph 14-12c, based on misconduct.  He had completed 5 years, 3 months, and 17 days of total active service during this period.

11.  The applicant submitted an application to the ADRB for an upgrade of his discharge.  On 15 August 2008, the ADRB determined that the reason for his discharge and the character of his service were both proper and equitable.  Accordingly, the ADRB denied the applicant relief.

12.  Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), lists:

   a.  Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel) and shows, in pertinent part, any person subject to this chapter who operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person's blood or breath is equal to or exceeds the applicable limit under subsection (b), shall be punished as a court-martial may direct.

   b.  Article 112a (Wrongful use, possession, etc., of controlled substances) and shows, in pertinent part, any person subject to this chapter who wrongfully uses, possesses, manufactures, or distributes a substance described in subsection (b), shall be punished as a court-martial may direct.  The substances referred to in subsection (a) are:  opium, heroin, cocaine, amphetamine, lysergic acid, diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance.

13.  AR 635-200 sets forth the authority for the separation of enlisted personnel.

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  The conditions that subject Soldiers to discharge include the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM.

    	(1)  Action will be taken to separate a Soldier for misconduct when it is clearly established that:

    		(a)  despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed, and

    		(b)  rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record).

    	(2)  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall records.

   b.  Chapter 3, 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 applicant contends that his discharge should be upgraded because he was not afforded the opportunity to appear before an administrative separation board and he was treated unfairly compared to other Soldiers when he was discharged prior to adjudication of his case in civil court.


2.  The applicant's contention that several other Soldiers were cited for DUI and they were given more lenient treatment is not in dispute.  However, the applicant was an NCO and based on his own description, the other individuals were Soldiers.  It is expected that an NCO would maintain and be held to a more stringent standard than junior enlisted Soldiers.  Moreover, it is reasonable to conclude that the applicant knew and understood the high professional standards required of an NCO.

3.  Records show the applicant completed 5 years, 3 months, and 17 days of total service.  Thus, the evidence of record shows the applicant was not entitled to an administrative separation board.  Moreover, the evidence of record shows that at the time of his administrative separation processing the applicant was advised by legal counsel of this fact.  Thus, the applicant's contention that he was not afforded the opportunity to appear before an administrative separation board lacks merit.

4.  The applicant's administrative discharge under the provisions of AR 635-200, chapter 14, for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of discharge directed were both proper and equitable.

5.  The applicant was serving as an NCO when he was charged with the offenses of driving while intoxicated and possession of a controlled substance (Group 1).  Thus, based on the evidence of record, his service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled 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)                                         AR20140016096



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ABCMR Record of Proceedings (cont)                                         AR20140016096



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