IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 June 2013

      CASE NUMBER:  	AR20130001122
___________________________________________________________________________

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 to upgrade his characterization of service from general, under honorable conditions to fully honorable, and a change to the reentry code.

2.  The applicant states, in effect, that his discharge was improper because it was based on an incident in which he was informed he would receive an honorable discharge, but received a general discharge.  The incident that led to the ASAP failure was the fact that he allowed another individual to drive his vehicle in his (the applicant’s) presence and the individual was charged for DUI.  His commander stated that if he admitted to consuming alcohol, he would grant him an honorable discharge and that he may return to the military at a later time.  He received a general, under honorable conditions discharge with a reentry code of 4, resulting in an inability to return to the military.  Issue 2:  Prior to the stated incident and while in ASAP, his counselor discussed the possibility of him attending the inpatient alcohol treatment program in Germany.  He requested to attend the program and his commander agreed; however, at a later time his commander decided he did not need to attend the treatment program.  Since his discharge, he has attended and completed an inpatient alcohol treatment program at a veterans’ hospital.  Issue 3:  In 80 months of service, he received three ARCOMs and four AAMs, and earned an Expert Field Medic Badge (EFMB), the rank of Staff Sergeant E-6, and the division Noncommissioned Officer of the Year 2007.  He believes his achievements and accomplishments surpassed his poor judgment and mistakes.  He is worthy of an honorable discharge and an upgrade of his reentry code to allow him to meet with a recruiter and return to active military service, and rectify his career.  Issue 4:  During his term in Germany, he did not receive quarterly or annual counseling.  In 2008, he received orders for an all-others-tour of duty in Germany.  Leaving his wife and two step-children in Texas caused great strain on his marriage, which led to divorce proceedings.  He turned to alcohol to drown his problems and feelings.  He began drinking heavily and allowed alcohol to control his life.  He is not making excuses—he used poor judgment and made mistakes that led to his discharge.  He believed his discharge would save his marriage and agreed to a discharge.  In retrospect, he wishes he fought for his career and taken his discharge to a board of appeals.  He has completed an alcohol treatment program with no further incidents in over two years.  He asks to have his military personnel file reviewed and to weigh his achievements and accomplishments against his mistakes.  He hopes for a second chance by upgrading his discharge and retention code.  He loved the Army and his career as a. Soldier.  He was a great Soldier, and his time in the Army was the greatest in his life.  He wishes to return to active duty service, serve his country, and continue with the career that he loves.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	15 January 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	6 October 2010
	d.	Reason/Authority/SPD/RE Code:	Alcohol Rehabilitation Failure, AR 635-200, Chapter 9, 
			JPD, RE-4
	e.	Unit of assignment:	HHC, 7th U.S. Army Joint Multinational Training 
			Command, Vilseck, Germany
	f.	Current Enlistment Date/Term:	22 June 2007, 4 years
	g.	Current Enlistment Service:	3 years, 3 months, 15 days
	h.	Total Service:	6 years, 8 months, 17 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (040120-070621) / HD
	k.	Highest Grade Achieved:	E-6
	l.	Military Occupational Specialty:	68W (Healthcare Specialist)
	m.	GT Score:	117
	n.	Education:	HS Graduate
	o.	Overseas Service:	Germany, SWA
	p.	Combat Service:	Iraq (041212-051213)
	q.	Decorations/Awards:	ARCOM-3; AAM-4; NDSM; GWOTEM; GWOTSM; 
			NPDR; ASR; OSR-2; MUC
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 20 January 2004 and reenlisted on 22 June 2007 for a period of 4 years.  He was 23 years old at the time of entry and a high school graduate.  He served in Germany and Iraq.  He earned three ARCOMs and four AAMs,          and completed 6 years, 8 months, and 17 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record indicates that on 15 September 2009, the applicant was command referred to ASAP for being drunk on duty.  Previous treatment history due to alcohol-related incidents reflects the following information: 

a.	On 2 May 2006, he was referred to ASAP upon DUI and completed it on 28 July 2006.

b.	On 3 February 2009, he was referred to ASAP upon DUI and completed it on 14 May 2009. 

c.	In 2009, he was referred to ASAP upon a third alcohol related incident.

d.	In January 2010, his command reported his performance and behavior was unsatisfactory and the ASAP continued.

2.  On 15 June 2010, the unit commander in consultation with the Clinical Director/Army Substance Abuse Program (ASAP), declared the applicant a rehabilitation failure upon a fourth alcohol-related incident on 22 May 2010, and the applicant’s admission of consuming alcohol, and not willing to give up his occasional drinking and continue ASAP treatment.  

3.  On 10 August 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 9, AR 635-200, by reason of alcohol rehabilitation failure because of an alcohol related incident that occurred on 22 May 2010, and the following alcohol-related incidents:

a.	initially being referred to the Army Substance Abuse Program (ASAP) after receiving a DWI (060502);

b.	being referred a second time and entered treatment (090203);

c.	being referred again (090929), during which time he was command referred due to drinking while attending training in CONUS, and had been enrolled in ASAP since then; 

d.	reported to be progressing slow, attending only sessions, not wanting to engage in any outside support groups such as AA, and his progress was reported to be unsatisfactory;

e.	being involved in another alcohol related incident and charged with allowing an intoxicated, unlicensed individual to operate his POV and failure to obey a regulation (100522); and 

f.	subsequently, in a rehabilitation team meeting (RTM), he admitted to consuming alcohol at the time of his latest incident and periodically throughout the last several months, and also stating he was not willing to give up his “occasional” drinking and that he was not willing to continue ASAP treatment.

4.  The unit commander advised the applicant of his rights and recommended a discharge from the Army with a characterization of honorable service and waiver of any rehabilitation measures.

5.  On 7 September 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than a general, under honorable conditions discharge and did not submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

6.  On 17 September 2010, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 

7.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

8.  The applicant was separated on 6 October 2010, under Army Regulation 635-200, Chapter 9, for alcohol rehabilitation failure, with a general, under honorable conditions discharge, an SPD code of JPD and a reentry code of 4.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, 5 February 2010, failure to report on 2 separate occasions (090914), and incapacitated for performance of duties (090914).  The punishment consisted of reduction to the grade of E-5, forfeiture of $1,167 per month for two months (suspended), 45 days of extra duty and restriction, (FG). 

2.  On 11 June 2010, the suspended sentence of forfeiture of pay as stated in the above paragraph was vacated because of a new offense: wrongfully allowing someone to operate his POV without a U.S. Forces certificate of license, in violation of Article 92, UCMJ.

3.  A negative counseling statement, dated between 25 May 2010, for allowing the driver of his POV to drive under the influence and without a German driver’s license.

4.  A General Officer Memorandum of Reprimand dated 1 June 2010, for driving while intoxicated.

5.  An MP preliminary report, dated 14 September 2010, indicating the applicant was the subject of an investigation for driving while intoxicated, operating a vehicle without a valid driver’s license, allowing an intoxicated person to operate a motor vehicle, and failure to obey an order or regulation.

6.  An MP Desk Blotter, dated 22 May 2010, indicating the applicant was the subject of an investigation for driving while intoxicated, operating a vehicle without a valid driver’s license, allowing an intoxicated person to operate a motor vehicle, and failure to obey an order or regulation. 

7.  Three NCOERs covering period:

a.	16 January 2009 to 15 January 2010 (Annual):  The applicant was rated as “Needs Improvement” and received 3/4 from the senior rater

b.	1 May 2008 to 15 January 2009 (Change of Rater):  The applicant was rated as “Fully Capable” and received 2/2 from the senior rater.

c.	1 May 2007 to 30 April 2008 (Annual):  The applicant was rated as “Among the Best” and received 1/1 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant did not provide any additional evidence. 

POST-SERVICE ACTIVITY:  

The applicant provided none. 

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 outlines the procedures for discharging individuals because of alcohol or other drug abuse.  

2.  A member who has been referred to the Army Substance Abuse Program (ASAP) for alcohol or drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  

3.  Army policy states that an honorable or general, under honorable conditions discharge is authorized depending on the applicant’s overall record of service.  However, an honorable discharge is required if limited use information is used in the discharge process.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JPD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 9, for alcohol rehabilitation failure.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JPD" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the reentry code of his discharge was carefully considered.  However, after examining the applicant’s military records, the issues and documents submitted with the application, there were insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the reentry code.  

2.  The applicant was enrolled in the Army Substance Abuse Program (ASAP) and was aware of the consequences of any action which would demonstrate any inability or refusal to participate in, cooperate in, or successfully complete such a program.  As a result of the applicant’s actions and after consultation with the drug and alcohol abuse counselor, the command declared the Soldier a rehabilitation failure.  The evidence of record establishes the fact the applicant was properly counseled and afforded a reasonable opportunity to overcome his problems. 

3.  The applicant contends that his discharge is improper, because he was informed he would receive an honorable discharge based an incident of misconduct for which he was informed he would receive an honorable discharge.  The applicant refers to an incident where he allowed another person to operate his vehicle in his presence and the said person was charged with DUI.  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 he may have been unjustly discriminated.  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 or a change to the reentry code of his discharge. 

4.  Further review of the applicant’s separation proceedings revealed several incidents of misconduct for which the Army discharged the applicant included information of his initial referral to the Army Substance Abuse Program that occurred in a prior term of enlistment.  However, AR 635-200 provides that commanders may consider incidents from a prior period of enlistment on the issue of retention or separation.  The separation authority’s decision memorandum does not state the prior incident was not considered for the purpose of characterization.  However, the presumption of government regularity prevails in the discharge process, as the separation authority cannot consider information from prior periods of service when determining characterization and there is no affirmative indication the separation authority did so.  The applicant’s period of service under consideration was marred by numerous alcohol-related incidents as reflected in the records of nonjudicial punishment UP Article 15, UCMJ, memorandum of reprimand, negative counseling statement, and military police reports that justified the characterization of service awarded.  The stated records are all dated within the applicant’s current term of enlistment under review.  Therefore, even if the separation authority considered the incident when he was initially referred to ASAP from an earlier period of service in determining the characterization for the period under consideration, it was a harmless error.  

5.  The applicant also contends that he had good service which included receiving several commendation and achievement awards, and deserves an honorable characterization of service.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of alcohol-related misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6.  Furthermore, the applicant contends that he was having family issues that affected his behavior and ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation under review.

7.  Regarding his contention of not being counseled, the record reflects that before initiating discharge proceedings, the command had ensured the applicant was appropriately counseled about his deficiencies which could lead to separation, to include the appropriate command referring him to ASAP on several occasions to provide him the treatment and rehabilitation.  The command made an assessment of the applicant’s potential for becoming a fully satisfactory Soldier.  The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies.  As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.

8.  Further, the applicant contends that since leaving the Army, he has successfully completed an alcohol treatment program with no further incident in over two years.  The applicant’s post-service accomplishments have been noted as outlined in the applicant.  However, in review of the applicant’s entire service record and the reason for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.

9.  The applicant has also requested a change to the reentry code in order to rejoin the Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table, the reason for the discharge being proper and equitable, the applicant was appropriately assigned an RE Code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

10.  The applicant's also desires to use the benefits of the GI Bill for college.  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.

11.  Finally, the record does not contain any evidence of arbitrary or capricious actions by the command and it appears that 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, specifically, within his current service under review.  Accordingly, the record shows the proper discharge and separation authority procedures were not followed in this case.

12.  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:  12 June 2013        Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  1	No Change:  4
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:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA




















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)		AR20130001122



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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