IN THE CASE OF:  	Mr. 

      BOARD DATE:  	1 May 2013

      CASE NUMBER:  	AR20120022752
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests upgrade of his characterization of service from general, under honorable conditions to fully honorable. 

2.  The applicant states, in effect, that he wants to be able to take advantage of the VA educational program so that he may enter the medical occupation field, a reason for his enlistment.  When his unit was deployed to Afghanistan, he performed his assigned duties consisting of guard duty, daytime and nighttime foot patrols, etc.  On 23 August 2010, a Stryker vehicle was blown up by an IED during a patrol.  He was assigned as the rear guard and when the IED exploded, he was knocked back into the Stryker and knocked unconscious, and two of his fellow Stryker buddies were seriously hurt.  He was so thankful that he had the protective gear on or he could have been seriously injured.  He had a difficult time dealing with the IED situation.  Then in mid-September, 2010 while on foot patrol, they encountered live enemy fire.  They eliminated six enemies.  He has never been in a situation of any type where there was a person killed and in this situation, he was part of it.  Although they are trained as infantry men, it was really difficult for him to be in that situation.  The two situations caused him a mental state that was difficult to deal with.  He got involved with drugs as he needed something to help him.  In November 2010, he failed a drug test and was reduced in rank.  He is sorry for what has happened.  The unit did not offer any type of drug rehabilitation program while he was in Afghanistan, but it was provided after their redeployment to Vilseck, Germany on May 31, 2011.  Right before he departed Vilseck to be discharged, he had an appointment with a mental health specialist to determine if he was going to be able to return to civilian life; however, nothing resulted from the interview.  He was recently diagnosed by the VA with PTSD and he was prescribed medication for his condition.  He feels his discharge was inequitable because it was based on a failed drug test.  
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	17 December 2012
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	6 June 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse) / AR 635-200, Paragraph 
			14-12c(2) / JKK / RE-4
	e.	Unit of assignment:	C Troop, 1st Squadron, 2nd Cavalry Regiment, 
			Vilseck, Germany
	f.	Current Enlistment Date/Term:	8 July 2009 / 3 years, 17 weeks
	g.	Current Enlistment Service:	2 years, 10 months, 29 days
	h.	Total Service:	2 years, 10 months, 29 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	11B (Infantryman)
	m.	GT Score:	92
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (100601-110531)
	q.	Decorations/Awards:	NDSM; ACM-CS; GWOTSM; ASR; OSR; NATO; MUC
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the regular Army on 8 July 2009, for a period of 3 years and 17 weeks.  He was 18 years old at the time of entry and had a high school diploma.  He served in Afghanistan and was serving at Vilseck, Germany, when his discharge was initiated.  The record does not reflect any valor or achievement awards.  He has completed 2 years, 10 months, and 29 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence shows that on 30 April 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for commission of a serious offense, abuse of illegal drugs, specifically for wrongfully using marijuana (110727-110826) and failing to report to his appointed placed of duty (110818 and 110823).

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  

3.  On 3 May 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his 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 a general, under honorable conditions discharge.  

4.  On 15 May 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 6 June 2012, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with an RE code of 4.

6.  The service record does not contain any evidence of time lost.  

7.  The record also contains two positive urinalysis coded as IR (Inspection Random), dated      1 January 2011, that was positive for marijuana, and IU (Inspection Unit), dated 1 June 2010, that was positive for Tetrahydrocannabinol (THC).



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The applicant received a company grade Article 15, dated 23 September 2011, for failing to be at his appointed place of duty at the prescribed time x 2 (110818 and 110823).  He received a punishment of forfeiture of $342, 14 days of extra duty and restriction.

2.  The applicant was convicted by a summary court-martial on 15 December 2011, for wrongfully using a controlled substance (120207-120227); his punishment consisted of forfeiture of $500 for one month, and one month restriction.

3.  The forwarding memorandum in which the commander recommended the applicant’s discharge reflects he was reduced from E-3 to E-1 on 16 October 2010; however, there is no record of the reduction in rank process.

4.  One negative counseling dated 16 March 2012, for testing positive for marijuana on a unit urinalysis.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 214 for service under current review and successful completion of “Prime for Life” document, dated 15-16 November 2011.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, that he would like to participate in the VA educational program.   

REGULATORY AUTHORITY:

1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 being absent 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.   

2.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, 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.

DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s service record, and the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The analyst determined that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel; it brought discredit on the Army and was prejudicial to good order and discipline.  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.  

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the discharge was unjust because it was based on a failed drug test that resulted when he became involved with drugs to help him with his PTSD symptoms.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was inequitable.  In fact, the applicant’s punishments by an Article 15 and a summary court-martial justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge

5.  The applicant made reference to one failed drug test; however his record reflects documentary evidence of receiving two separate positive urinalysis results in January 2011 and June 2010.

6.  Furthermore, the applicant contends that he was diagnosed and is being treated for his PTSD by the Veterans Administration.  However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that on 2 December 2010, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  He knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same condition that completed their service successfully.  Moreover, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

7.  The applicant contends that he got involved with drugs to help him, which affected his behavior and ultimately caused him to be discharged.  However, he had many other legitimate avenues through which to obtain assistance or relief, such as the numerous Army community services like the Chaplain, Army Community and Family Support Services, and Community Counseling Center.  There is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.

8.  The applicant also contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill.  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.

9.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.

10.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.















SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review	  Date:  1 May 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	N/A
Change RE Code to:		N/A
Grade Restoration to:		N/A
Other:					N/A



















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20120022752



Page 6 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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