IN THE CASE OF:  

		BOARD DATE:  16 April 2015	  

		DOCKET NUMBER:  AR20140016323 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that prior to his military service, he was suffering from mental disorders such as attention deficit disorder (ADD), bi-polar disorder, and drug addiction.  He informed the recruiter about these problems and asked for his advice.  He was told to stop smoking marijuana so he could join the Army.  He tried to stop but could not do so.  He failed his urinalysis.  He tried a second time but was unsuccessful.  The recruiter then took him to a nutrition store and bought him a urine cleansing agent so he would pass the next testing.  He did pass that test and was shipped to basic training.  He learned very quickly and was a platoon guide.  However, he was injured and was not able to complete the training.  He was given medical treatment and sent home to recuperate.  When he returned he was recycled through the training.  He successfully graduated and was assigned to Fort Hood, Texas.  He worked at division headquarters as a maneuver and control systems operator.  After 
6 months, he failed a random drug screening for marijuana and he received a verbal reprimand.  He failed the next random drug screening, received two 
one-hour drug and alcohol classes per week for 6 weeks, and was reassigned to a line unit.  While in the line unit he failed a random drug screening, his wife (now his ex-wife) cheated on him, and his younger sister died.  He also had an altercation with the person who cheated with his ex-wife.  


3.  Additionally, the applicant states he was given 45 days of extra duty and restricted to the barracks.  After 10 days of restriction, he went absent without leave (AWOL) for an extensive period of time.  He continued to use drugs to cope with his grief.  After 11 months, he turned himself into authorities.  He was medicated by an Army psychiatrist and then administratively discharged from the Army.  He believes he would have succeeded if he had received adequate treatment for his mental illness.  He has successfully completed a rehabilitation program, taken courses on managing his grief, and he is currently attending college for psychology with an emphasis on addiction.  He hopes to work with the military and help prevent Soldiers from going through the problems he has endured.  The granting of this request will help him help other Soldiers in the future.

4.  The applicant provides copies of a:

* Urine Sample Custody Document, dated 30 August 2000
* Memorandum for the commander, subject: Recommendation to Maintain and Ship the Applicant, dated 25 January 2002
* Personnel Roster, dated 30 January 2002
* Standard Form 600 (Chronological Record of Medical Care), dated
29 March 2002
* DD Form 689 (Sick Slip) dated 2 April 2002
* DD Form 458 (Charge Sheet), dated 23 June 2003
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 22 November 2004
* Certificate of Death, issued on 23 November 2004, showing his sister died on 4 September 2004
* "DAT" Waiver, undated

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.  On 25 January 2002, the applicant enlisted in the Regular Army.  He completed training as an infantryman and was assigned to Fort Hood, Texas.

3.  On 1 October 2004, the applicant's commander notified him of his intent to separate him under the provisions of Army Regulation 635-200, (Personnel Separations – Enlisted Personnel) paragraph 14-12c, for the commission of a serious offense.  The basis for this action was the applicant's wrongful use of marijuana between 5 March and 3 April 2003 and between 24 March and 22 April 2003; for unlawfully striking a Soldier in the back of the head with a closed fist on 5 April 2003; and for being AWOL from 1 July 2003 to his apprehension on 2 August 2004.  The applicant acknowledged receipt of the commander's intent on that same date.

4.  On 7 October 2004, the commander notified the applicant that he was considering whether to punish him under the provisions of Article 15, Uniform Code of Military Justice for the following offenses:

* AWOL from on or about 1 July 2003 to 2 August 2004
* Unlawfully striking another Soldier on or about 5 April 2003

5.  On 29 October 2004, the applicant was advised by legal counsel.  He waived consideration of his case by an administrative separation board, waived personal appearance before such board, elected to submit a statement, and waived representation by counsel before such board.  He also acknowledged his understanding of his rights as explained by his legal counsel.

6.  On 29 October 2004, the applicant's commander recommended the applicant be separated under the provisions discussed above due to the commission of a serious offense.

7.  The Commander, 1st Cavalry Division (Rear) recommended approval of the separation recommendation.

8.  On 1 November 2004, the applicant accepted NJP for the above two offenses and elected not to appeal.

9.  The documentation showing the separation authority's approval is missing from the applicant's Official Military Personnel File.

10.  On 22 November 2004, he was discharged UOTHC under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 (Personnel Separations) 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, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

13.  Army Regulation 15-185 (ABCMR), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded because he was suffering from mental disorders such as ADD, bi-polar disorder, drug addiction, and grief due to the death of his sister.

2.  Even though the separation authority's approval is missing from the available records, it strongly appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant has not provided any documentary evidence to substantiate his claim of having a mental illness that would have mitigated his misconduct.  
Further, there is no evidence that the applicant utilized his chain of command, the chaplain's office, or any other available resource to assist him with any personal problems he may have experienced. 

6.  In view of the above, the applicant's 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)                                         AR20140016323



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ABCMR Record of Proceedings (cont)                                         AR20140016323



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