IN THE CASE OF:	  

		BOARD DATE:	24 September 2015

		DOCKET NUMBER:  AR20150000418


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 discharge from under honorable conditions (general) to honorable.  In the alternative, he requests any and all references to his misconduct (drug abuse) be removed from his records.

2.  The applicant states:

	a.  He is writing to request his discharge be upgraded to honorable and/or to have the misconduct (drug abuse) removed from his records.  Having been a dedicated Soldier with no other behavioral issues, other than the issue that formed the basis for his discharge, he feels this is an acceptable request.

	b.  His discharge resulted from a positive drug test following a period of ordinary leave.  Being stationed at Fort Benning, Georgia, he took leave to visit a friend in Florida during the Thanksgiving holiday period.  While on leave, he visited a bar and drank more than he should have.  In doing so, his judgment was severely impaired and he made the devastating mistake of ingesting cocaine.  He completely accepts responsibility for these actions and regrets them daily.

	c.  With the research he's done on how best to request a discharge upgrade, he found some information that applies directly to his case.  The Army Substance Abuse Program (ASAP) website provides that one of its objectives is to "Restore to duty those substance-impaired Soldiers who have the potential for continued military Service."  Upon being admitted into the ASAP, he was faithfully attending all classes and personal meetings.  However, his chain of command refused to allow him to complete the counseling or continue with the program.  A year or so after he was discharged, he contacted the Fort Benning ASAP office to obtain his records but he was unsuccessful in doing so; since he did not complete the course, they were not sure if they had any records at all.

	d.  During his punishment, which took several weeks before his actual discharge, he respectfully requested that he be granted a rehabilitative transfer or change in his military occupational specialty (MOS).  His commander and first sergeant advised him that neither would ever happen.  Not only was he told there was no chance of ever staying in the military, he was also informed that his future civilian career would be forever destroyed as well.

	e.  Since he only had one actual punishable offense while serving in the military, it seems unreasonable that a second chance was never afforded him.  It has been over five years since his discharge and over four years since his last request for a discharge upgrade.  Since then, he has spent some time with a volunteer fire department where he completed a Water Rescue Operations training program.  Because of his military background, it has been impossible for him to gain employment with the State of New York, even though he had a previous stellar record as a State employee.  So with very limited options in his rural area, he sought the advice of his Department of Veterans Affairs (VA) representative in Albany, New York.  His VA representative was able to help him enroll in a college close to where he lives and he has been on the Dean's List every semester to date.  While serving in the Army, he was the best possible person he could be and he has continued to be the best possible person since he was discharged.

	f.  He was discharged for failing a single drug screening.  Prior to that, he passed every one he took, maybe 10 - 20 in all during his period of service.  Since being discharged, he's passed just as many.  Currently, he takes a drug test through the VA every 6 months and with his employer every time he gets hurt on the job (5 or 6 in the past couple years).  It is obvious that the situation that led to his discharge was an isolated event that did not happen previously and has not happened since.  Nor will it happen in the future.

	g.  All he requests is that he be given a fair and honest evaluation, based on the facts provided and mission statement of the Army ASAP.

3.  The applicant provides the following pieces of evidence, arranged chronologically:

* State of New York, Academy of Fire Science Training Certificate in Water Rescue Operations, dated 25 April 2010
* a letter from Clinton Community College, Plattsburgh, New York, dated     3 January 2014
* a letter from Clinton Community College, Plattsburgh, New York, dated     13 June 2014
* a third-party letter of support from his mother, dated 13 August 2014
* a third-party letter of support from an Assistant Professor at Clinton Community College, dated 19 August 2014
* a third-party letter of support from a Plant Engineer at the company that employs him, dated 20 August 2014
* a third-party letter of support from a retired New York State Policeman, dated 12 September 2014

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 11 September 2007.  After completing his initial entry training and the Basic Airborne Course, he was awarded MOS 92R (Parachute Rigger).  

3.  He was assigned to Headquarters, 199th Infantry Brigade, Fort Benning, Georgia on or about 16 May 2008, and he was further assigned to Company E, 1st Battalion, 507th Parachute Infantry Regiment, on or about 19 May 2008.   

4.  His unit conducted a urinalysis test on 1 December 2008, wherein the applicant's urine tested positive for cocaine. 

5.  He was formally counseled regarding his positive drug test on 10 December 2008.  

6.  His commander enrolled him in the ASAP on 11 December 2008. 

7.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 17 December 2008, for wrongfully using cocaine in violation of Article 112a of the UCMJ.

8.  He underwent a mental status evaluation, for the purposes of administrative separation, at Martin Army Community Hospital, Fort Benning, Georgia.  The results of his mental status evaluation were recorded on a Standard Form (SF) 600 (Medical Record – Chronological Record of Medical Care) and signed by the examining Licensed Clinical Social Worker.  

* he verbalized an understanding of the proceedings and agreed to continue with the examination
* no overt psychiatric disorders were noted
* he appeared to be mentally reasonable and able to distinguish right from wrong and adhere to the right
* his behavior was normal
* he was fully alert and oriented
* his thought process was clear and his thought content was normal
* his memory was good
* his judgment and insight were fair
* he was psychologically cleared for any administrative actions deemed appropriate by command

9.  The applicant was notified by his immediate commander on 16 January    2009 of his commander's intent to initiate separation actions against him, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for misconduct – commission of a serious offense – wrongful use of drugs.  The applicant acknowledged receipt of the notification memorandum on this same date.

10.  The applicant's immediate commander initiated separation actions against him on 16 January 2009.  

11.  The applicant acknowledged on 20 January 2009 that he had been advised by counsel of the basis for the contemplated action to separate him under Army Regulation 635-200, chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general discharge, under honorable conditions, was issued to him.  The applicant chose to submit statements in his own behalf.



12.  In a statement dated 21 January 2009, the applicant brought attention to:

* his outstanding duty performance since his arrival at Fort Benning
* his thus far clean record, with the exception of this one instance
* his acceptance of responsibility for his actions and his punishment

13.  His battalion commander recommended he receive a general, under honorable conditions characterization of service.

14.  The separation authority approved his discharge on 29 January 2009, under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.  

15.  The applicant was discharged from the Army on 12 February 2009, under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct (drug abuse).  His DD Form 214 shows:

* he was discharged in the rank/grade of private/E-1
* he was credited with completing 1 year,  5 months, and 2 days of creditable active service during his period of enlistment
* his character of service was under honorable conditions (general)
* his narrative reason for separation was misconduct (drug abuse)

16.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 20 May 2011.

17.  He provides several third-party letters of support from his mother, a college professor, his employment supervisor, and a retired New York State Policeman.  These letters attest to his professionalism, work ethic, and character as a human and as a citizen of his community.  

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.


   b.  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 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 general discharge if such is merited by the Soldier’s overall record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his general discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record shows he committed a serious offense in that he wrongfully used drugs.  He submitted a urine sample that tested positive for cocaine in violation of the UCMJ.  As a result, his chain of command initiated separation action against him.  

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.  His rights were fully protected throughout the separation process.  

4.  He was accordingly discharged under the provisions of Army Regulation 
635-200, chapter 14, due to his misconduct and he was issued an under honorable conditions (general) discharge.

5.  Soldiers are responsible for leading healthy lives by maintaining a physical and mental state of combat readiness at all times.  As a professional Soldier, the applicant had a responsibility and obligation to understand how drugs erode combat readiness, and to resist the temptation of drugs.  By using cocaine, the applicant diminished his combat readiness and placed in jeopardy the trust of his leaders and chain of command. 

6.  His post-service conduct, achievements and accolades are noted.  However, none of these factors mitigate the seriousness of his misconduct.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence does not support upgrading the discharge he received.

7.  According to the narrative reason for separation cited on his DD Form 214, he was separated by reason of misconduct (drug abuse).  Notwithstanding certain post-service employment challenges that have resulted from this entry, the applicant has failed to establish the inaccuracy of the narrative reason for separation shown on his DD Form 214.  The evidence establishes the accuracy of the entry; therefore, there is no basis or rationale for compromising the historical accuracy or integrity of his records.

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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20150000418



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