BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140020973 


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 honorable.

2.  He states he was a good Soldier when he was with the 121st Signal Battery and he deployed to Iraq with the unit in 2004 to 2005.  He was young and motivated and often volunteered to be a gunner on the gun truck during convoys. 
When his unit was disbanded, he executed a permanent change of station to Fort Hood, Texas.  By that time, he had a few issues that he did not know how to cope with and did not get the help he needed.  He got sucked into the wrong crowd and failed a drug test.  He has a daughter and is a totally different man.  He wants to further his education and earn a degree by using his GI Bill.

3.  He provides:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* six supporting statements/recommendations

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 2 April 2003.  He served in Iraq in support of Operation Iraqi Freedom (OIF) from 15 February 2004 to 15 February 2005.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 6 April 2006 for wrongfully using cocaine on or about 30 January 2006.

4.  On 29 June 2006, the applicant underwent a mental health evaluation that determined he had the mental capacity to understand and participate in the proceedings, was mentally responsible, and did not have any unfitting diagnosis that would require a medical evaluation board.  Additionally, the psychologist stated the evaluation revealed no evidence of altered thought process or any other mental health condition that would explain the behavior that resulted in the initiation of the administration action.

5.  On or about 14 August 2006, the unit commander notified the applicant that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense.  Specifically, he cited the applicant's nonjudicial punishment on 6 April 2006 for wrongful use of cocaine as the basis for the discharge action.

6.  On 14 August 2006, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he elected not to submit a statement in his own behalf.  He acknowledged he understood he could encounter substantial prejudice in civilian life if a general discharge were issued to him.  He further acknowledged he understood if he received a character of service which was less than honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

7.  On 15 August 2006, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 
14-12c, and issuance of a general discharge under honorable conditions.

8.  On 25 August 2006, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (drug abuse).  His service was characterized as under honorable conditions (general).  He completed 3 years, 4 months, and 2 days of total active service.

9.  On 19 October 2006, he appealed to the ADRB for an upgrade of his discharge.  On 7 December 2007 after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  The board denied his request for a discharge upgrade.

10.  The six supporting statements/recommendations submitted by the applicant speak highly of the applicant's trustworthiness and professionalism.  One author stated he served with the applicant while deployed to Iraq in support of OIF and the applicant was a great asset to the unit.  Another author said the applicant could be counted on to make the right decision and he would personally recommend him for any position that serves a greater purpose for this country.  A co-worker stated the applicant was an extraordinarily dedicated worker who donated his time, knowledge, and field expertise to the staff.

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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.  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 general discharge if such is merited by the Soldier’s overall record.

	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.  Although the applicant provided numerous supporting statements/
recommendations attesting to his outstanding qualities, these statements/recommendations alone are not sufficient as basis for upgrading his discharge.

2.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

3.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance for an honorable discharge.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding education benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20140020973



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ABCMR Record of Proceedings (cont)                                         AR20140020973



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