Applicant Name: ????? Application Receipt Date: 2012/04/16 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that at the time of his discharge his mental health was in question. The brigade commander ignored the recommendations and advice of his immediate commander and prior service record. His company commander recommended a general, under honorable conditions discharge and they knew him as a Soldier and the brigade commander did not. The applicant feels the brigade commander did not consider his prior service and all the surrounding factors to ensure that he received a discharge that was fair. After several months of fighting the issue he was unable to financially remain at Fort Bragg. He was forced to waive his administrative separation board unconditionally and accept the discharge due to financial issue. The applicant contends it was obvious to him that the brigade commander took a personal approach to his discharge. He is currently receiving care from the VA for mental health, drug abuse and alcoholism. He would qualify for more treatment with a higher character of service. He is requesting an upgrade to honorable or general, under honorable conditions. He is also requesting a change to the narrative reason for separation, to make it easier for him to become a productive member of society again after treatment. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 111118 Discharge Received: Date: 120322 Chapter: 14-12c(2) AR: 635-200 Reason: Misconduct (Drug Abuse) RE: SPD: JKK Unit/Location: Echo Company, 1st Battalion, 7th Air Defense Artillery, Fort Bragg, North Carolina Time Lost: None Article 15s (Charges/Dates/Punishment): 110627, wrongfully used cocaine (110523) and (110525); reduction to E-5; forfeiture of $1,482 pay per month for two months, suspended, to be automatically remitted if not vacated (111204); (FG). 111006, wrongfully used cocaine (110829) and (110831); reduction to E-4; forfeiture of $1,162 pay per month for two months; extra duty for 45 days; (FG). 111213, wrongfully used cocaine (110925), (110927), (111025) and (111027); wrongfully used marijuana (110901), (110927), (111001) and (111027); reduction to E-1; forfeiture of $733 pay per month for two months; (FG). Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 29 Current ENL Date: 080214 Current ENL Term: 5 Years ????? Current ENL Service: 4 Yrs, 1 Mos, 8 Days ????? Total Service: 15 Yrs, 4 Mos, 4 Days ????? Previous Discharges: RA 951118 - 001030/HD RA 001031 - 040927/HD RA 040928 - 060130/HD RA 060131 - 080213/HD Highest Grade: E-6 Performance Ratings Available: Yes No MOS: 92A10 Automated Logistical GT: 111 EDU: HS Grad Overseas: SWA Combat: Iraq (030319 - 030521) and (041228 - 051228) Decorations/Awards: ARCOMx3, AAMx2, AGCMx3, NDSM, KSM, GWOTEM, NPDR, ASR, OSRx3 V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The applicant submitted evidence that indicates that on 13 September 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-abuse of illegal drugs, for testing positive for cocaine on a drug test conducted (110525), with a general, under honorable conditions discharge. He was advised of his rights. The evidence of record shows on 12 October 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-abuse of illegal drugs, for testing positive for cocaine on a drug test conducted (110525) and testing positive for cocaine on a second drug test conducted on (110831), with a general, under honorable conditions discharge. He was advised of his rights. On 13 October 2011, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than general, under honorable conditions. On 18 November 2011, the brigade commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-abuse of illegal drugs, for testing positive for cocaine on a drug test conducted (110525) and testing positive for cocaine on a second drug test conducted on (110831), with an under other than honorable conditions discharge. He was advised of his rights. On 6 January 2012, the separation authority disapproved the conditional waiver request. On 18 January 2012, the applicant acknowledged receipt of notification to appear before an administrative separation board and was advised of his rights. On 15 February 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge and general, under honorable conditions. On 7 March 2012, the separation authority approved the unconditional waiver, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. The record contains military police report number 04511-2010-MPC023 dated, 8 August 2010. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. c. Response to Issues, Recommendation and Rationale: After carefully examining the applicant’s record of service during the period of enlistment under review the issue and documents submitted with the application, the analyst determined that the discharge was both proper and equitable. The analyst determined that the applicant’s discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of service below that meriting an honorable discharge. The analyst noted that three of the DD Form 2624’s (Specimen Custody Document-Drug Testing) found in the applicant's official record shows that the test was coded “RO” (Rehabilitation) and was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan The Limited Use Policy applies to this test basis, per AR 600-85. However, the evidence of record contains a Memorandum For Record, dated 23 February 2012, that indicates the tests were administered as part of the unit’s pre-established command policy and should have been coded as “IO" tests under command policy. Additionally, the applicant consulted with legal counsel, who would have informed him if the Limited Use Policy applied. In view of the aforementioned, the analyst determined that the code on the DD Form 2624 was in all likelihood incorrect and should have been coded IO for “Other Command Policy” instead of RO for “Rehabilitation.” The analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case. The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made. The applicant requests that the narrative reason for his discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)", and the separation code is "JKK." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the brigade commander took a personal interest in his discharge. The record indicates that despite the recommendation of the unic commander for a general, under honorable conditions discharge, the brigade commander, considering all aspects of his service record, and the recommendation of his unit commander saw fit to recommend an under other than honorable conditions discharge. Additionally, the separation authoirty is not bound by the recommendations of the unit or intermediate commanders. The analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The analyst noted the applicant's issue concerning his desire to utilize VA benefits. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The analyst noted the applicant's issue of becoming a productive member of society; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 3 October 2012 Location: Washington, D. C. Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: None Exhibits Submitted: DD Form 293 with OMPF documents and selected portions of the discharge packet and a DD Form 214. VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board noted that the government introduced a document into the discharge process revealing that the applicant had been referred to the Alcohol and Drug Prevention and Control Program for substance abuse. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. Accordingly, the Board voted to change the characterization of service to honorable. However, the board found that the reason for discharge was fully supported by the record and voted not to change it. IX. Board Decision Board Vote: Character - Change 4 No change 1 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: NA XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III Colonel, U.S. Army President, Army Discharge Review Board BONITA E. TROTMAN Lieutenant Colonel, U. S. Army Secretary Recorder Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20120007927 ______________________________________________________________________________ Page 5 of 5 pages