IN THE CASE OF:  	Mr. 

      BOARD DATE:  	5 June 2013

      CASE NUMBER:  	AR20130001604
___________________________________________________________________________

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 an upgrade of his general, under honorable conditions discharge to honorable.

2.  The applicant states, in effect, that medical issues contributed to his discharge from the Army.  He contends his command was frustrated with him getting sick prior to deployment and because he had testosterone in his possession they decide to discharge him.  He is currently receiving 30% disability from the Veterans Affairs and is trying to go back to school and needs his characterization of service upgraded so he can receive vocational rehabilitation training.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 January 2013	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			20 December 2006	
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 							JKK, RE-4	
e. Unit of Assignment:			D Btry, 1st Bn, 7th FA, APO AE	
f. Current Enlistment Date/Term:	25 April 2005, 3 years and 2 weeks
g. Current Enlistment Service:	1 year, 7 months, 26 days
h. Total Service:			9 years, 4 months, 14 days
i. Time Lost:				None
j. Previous Discharges:		RA-941027-970315/HD											USARCG-970316-020723/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	13F10, Fire Support Specialist
m. GT Score:				114
n. Education:				HS Graduate	
o. Overseas Service:			Germany
p. Combat Service:			None
q. Decorations/Awards:		ARCOM, AAM-2, AGCM, NDSM-2, GWOTSM, ASR
r. Administrative Separation Board: 	No	
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No






SUMMARY OF SERVICE:		

The applicant's record shows he served in the Regular Army and in the US Army Reserve between 1994 and 2002.  On 25 April 2005, he reenlisted in the Regular Army for a period of 3 years and 2 weeks.  He was 36 years old at the time and a high school graduate.  His record documents the awards of an ARCOM, two AAM's, and an AGCM.  He completed 9 years, 4 months, and 14 days of total active and inactive service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 7 December 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason misconduct (serious offense).  Specifically for the following offenses:

a. receiving an Article 15 for the wrongful possession of testosterone
b. being drunk on duty
c. disrespecting a noncommissioned officer

2.  The unit commander also noted in the notification memorandum that the applicant meets DSM-IV diagnostic criteria for Personality Disorder NOS.

3.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

4.  On 7 December 2006, 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, 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 with a general, under honorable conditions discharge.  

5.  On 12 December 2006, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

6.  The applicant was discharged from the Army on 20 December 2006, with a characterization of service of general, under 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 service record does not contain any evidence of unauthorized absences or time lost. 




EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 4 May 2006, for the wrongful possession of eight viles of testosterone (050816).  His punishment consisted of a written reprimand (FG) 

2.  Two negative counseling statements dated between 11 August 2005 and 12 October 2006 for being drunk on duty and discharge proceedings under the provisions of Chapter 14 for misconduct.
      
3.  Report of Mental Status Evaluation, dated 27 November 2006, which indicates the applicant had the mental capacity to understand and participate in the proceedings; was mentally responsible, meets the retention requirements of Chapter 3, AR 40-501.  The document also indicated it was the doctor's recommendation that the applicant's command consider administrative separation under AR 635-200, Chapter 5-13.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored letter with his application.

POST-SERVICE ACTIVITY: 

None were provided with the application.

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 record of service, his military records, the documents 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 possessing 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 his Article 15 for a violation of the Uniform Code of Military Justice.

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 his command was frustrated with him which led to his discharge.  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 the result of his command being frustrated with him. 

5.  The applicant contends that medical issues contributed to his discharge from the Army.  However, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  The evidence of record shows separation action was imitated against the applicant as a result of him receiving an Article 15 for the wrongful possession of testosterone, being drunk on duty, and disrespecting a noncommissioned officer.





6.  It was noted that the applicant was recommended for discharge under the provisions of Chapter 5-13.  However, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  

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:  5 June 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:	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)		AR20130001604



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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