IN THE CASE OF:  	Mr.

      BOARD DATE:  	3 May 2013

      CASE NUMBER:  	AR20130000116
___________________________________________________________________________

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 did not provide any issues of equity or propriety to be considered by the Board. 

2.  The applicant states, in effect, that he is in a treatment program for 90 days and wants to step up and make amends for the mistakes in his life.  He wants to better himself from the disease.  He is ready to move on as a productive citizen with his life.  He would like to further his education to provide a stable life for his family.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	26 December 2012
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	3 December 2009
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse) / AR 635-200, Paragraph 
			14-12c(2) / JKK / RE-4
	e.	Unit of assignment:	B Co, 2nd Bn, 30th Infantry Regiment, 4BCT, 10th 
			Mountain Division (Light Infantry), Fort Polk, LA
	f.	Current Enlistment Date/Term:	3 December 2008 / 6 years
	g.	Current Enlistment Service:	11 months, 6 days
	h.	Total Service:	2 years, 5 months, 17 days
	i.	Time Lost:	25 days
	j.	Previous Discharges:	RA (070523-081202) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11C (Indirect Fire Infantryman)
	m.	GT Score:	90
	n.	Education:	GED and 1 year college
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (071121-090105)
	q.	Decorations/Awards:	ARCOM; NDSM; ICM-CS; GWOTSM; ASR; OSR; 
			CIB; VUA
	r.	Administrative Separation Board: 	Waived in a pretrial agreement
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 23 May 2007 and reenlisted on 3 December 2008 for a period of 6 years.  He was 33 years old at the time of his initial enlistment and had a high school equivalency (GED) and completed one year of college.  He served in Iraq.  He earned an ARCOM and completed 2 years, 5 months, and 17 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 15 October 2009, 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 (serious offense) for the following offenses:

      a.  failing to report (090223) 
      b.  assaulting Ms. A (090223)
c.  wrongfully using cocaine on 3 occasions (090608-090708, 090724-090727, 090815-   090818)

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 
 
3.  On 13 November 2009, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board.  The applicant did not submit a statement on 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 with an under other than honorable conditions discharge.  

4.  On 7 October 2009, the record indicates the applicant’s offer to plead guilty pursuant to a summary court-martial pretrial agreement was accepted.  He acknowledged his right to a separation board before he could receive an under other than honorable (UOTH) conditions discharge, and that as part of the pretrial agreement, he agreed to waive consideration of his case by an administrative separation board and further indicated he understood he may be separated with an UOTH conditions discharge.

5.  On 20 November 2009, the separation authority approved and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

6.  The applicant was discharged from the Army on 3 December 2009, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

7.  The applicant’s record of service indicates 25 days of time lost for being confined in a military confinement facility from 15 October 2009 until 8 November 2009.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are four positive urinalysis reports contained in the record:

	IU, Inspection Unit x 2, 8 July 2009 and 27 July 2009, cocaine 
	IR, Random Sample x 2, 18 August 2009 and 8 September 2009, cocaine
2.  Article 15, dated 4 August 2009, wrongfully using cocaine (090608-090708).  The punishment consisted of reduction to the grade of E-1, forfeiture of $699 per month for two months (suspended), 45 days of extra duty and restriction (FG). 

3.  Article 15, dated 3 April 2009, unlawfully striking Ms. A in the face with his fist (090223) and unlawfully grabbing Ms. A by the wrist (090223).  The punishment consisted of reduction to the grade of E-3 (suspended), forfeiture of $426 (suspended), 7 days of extra duty and restriction (CG).

4.  DA Form 258 (Charge Sheet), dated 5 October 2009, for the following charges and its specification(s):

	a.  Charge I, Article 86
Specifications 1 and 2: failing to go to his appointed place of duty at the prescribed time (090924), 0630 accountability formation and 0930 work call)
	b.  Charge II, Article 112a
Specifications 1, 2, 3: wrongfully using cocaine (090724-090727, 090815-090818, 090905-090908).

5.  Summary Court-Martial Result of Trial shows that on 15 October 2009, the applicant was convicted of the aforementioned offenses and received a sentence of 30 days confinement, (SCM).

6.  Four negative counseling statements dated between 18 May 2009 and 30 September 2009, for being AWOL, showing up to work late, missing formations, having positive urinalysis, abusing spouse, domestic disturbance, and having altercations with his spouse.

7.  An MP Report dated 24 February 2009, that indicates the applicant was the subject of an investigation for simple assault, consummated by a battery, and domestic abuse. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no additional evidence. 

POST-SERVICE ACTIVITY: 

The applicant states he is in a treatment program for drug abuse issues. 

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 did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, his application will be considered for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge, unless the applicant requests a specific change to another character of discharge.  An upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record confirms 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 his service below that meriting an honorable discharge.  The applicant’s record of service was marred by the summary court-martial conviction, 2 Articles 15 for multiple violations of the Uniform Code of Military Justice and negative counseling statements.

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 that since leaving the Army he has enrolled in a treatment program.  The applicant’s post-service accomplishment has been noted as outlined on the application. However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that this accomplishment does not overcome the reason for discharge and characterization of service granted.  

5.  The applicant has also expressed his desire possibly to have better job opportunities to provide for his family and the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, 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.

6.  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.  

7.  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:  3 May 2013         Location: Washington, DC

Did the Applicant Testify?  N/A 

Counsel:  None

Witnesses/Observers:  N/A 

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)		AR20130000116



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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