Applicant Name:  ?????

Application Receipt Date: 2012/05/15	Prior Review:     Prior Review Date: 7 October 2011, Records Review. 

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states in effect: "His last command violated his rights as a Soldier, but failed to process him out in accordance with DOD 1332.38 & 1332.39 Active Service E2. I.7 Compensable Disability & E2.1.8 Competency Board dictates that a Board consisting of at least 3 Medical Officers or Physicians (Including One Psychiatrist) convened to determine whether a member is competent (Capable of making rational decisions regarding personal and financial affairs).  At the time it was true.  I was seeking psychiatric help at the time for my severe pain with anxiety problems of which these problems had caused. The VA has now conceded that all my disabilities were in-line of duty and based on all facts presented to my case, I should have at least been given the opportunity to appear before a medical evaluation board (MEB) IAW DOD 1332.38 & 1332.39," DOD Instruction 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities, November 14, 1996. The VA has conceded that all my disabilities were serviced connected as a result of these disabilities being determined in-line of-duty.  Medical treatment was provided to me after nine months after the injury occurred. During that duration, is where I was experiencing severe pain in my shoulder & neck joints to the point of which I needed to utilize the Army's Personal Reliability Program "PRP" for my anxiety problems that were exacerbated from severe path from my above mentioned conditions of my musculoskeletal system while in the Army.   This was an attempt for me to rehabilitate my mental health problems at the time while in the Army. I would also like an investigation be completed regarding the negative actions the Army had taken against me by disallowing me to appear in front of a Medical Evaluation Board "MEB" or a Competency Board in Accordance With DOD 1332.38 to that the VA conceded my disabilities were all in line of duty, please See DOD instruction 1332.39 VA."  Also I would like another investigation done as to why the Army disallowed me to appear in front of a Board in Washington D.C. to address my issues regarding my upgrade. I believe this was another law violated."

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: 100317
Discharge Received: 			   Date: 100409   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: HHC, 3rd STB, Fort Carson, CO 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 100112, wrongfully used marijuana between (091101 and 091201), reduction to E1; forfeiture of $724.00 x 2 months; and extra duty for 45 days, (FG).


Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 080722    Current ENL Term: 04 Years  ?????
Current ENL Service: 	01 Yrs, 08  Mos, 18  Days ?????
Total Service:  		01 Yrs, 08  Mos, 18  Days ?????
Previous Discharges: 	None
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 91G10/Fire Control Repairer   GT: 113   EDU: Associate's Degree   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 17 March 2010, 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-commission of a serious offense for wrongfully using marijuana between (091101 and 091201), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       The applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board (although not entitled to a board), and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  
       
       On 17 March 2010, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

       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 a careful review of all the applicant’s military records during the period of enlistment under review, the issues and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  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 his service below that meriting a fully honorable discharge.
       
       The applicant contends that at the time of his discharge he was seeking medical and psychiatric help for severe pain and anxiety problems and should have been given the opportunity to appear before a medical evaluation board.  The analyst noted the applicant's contention; however, there is no evidence in the record and the applicant has submitted no probative medical evidence that he had a medical problem which rendered him disqualified for further military service and that he was not able to perform his duties.  Moreover, DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped and the board report is filed in the member’s medical record.  
       
       The analyst also noted the applicant's contention that he was not allowed to appear before a Board in Washington, DC to address upgrading his discharge.  However, the applicant's application for correction of his military record, dated 25 March 2011, does not indicate the applicant desired to appear at a hearing before the Army Discharge Review Board in Washington, DC.  His record was appropriately reviewed by the Army Discharge Review Board and he is now being given the opportunity to appear before the Board.
       
       The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Therefore, the analyst determined that 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: 29 October 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: none

Witnesses/Observers: none 

Exhibits Submitted: DD Form 293, Document submitted to Congressman (2 pages), and DD Form 214 for the period of service under review.






VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable, and voted to deny relief.
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
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: NA
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




JOSEPH M. BYERS
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 AR20120010195
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