IN THE CASE OF: 	Mr. 	

      BOARD DATE:  	21 June 2013

      CASE NUMBER:  	AR20130002948
___________________________________________________________________________

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 that 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 discharge from general, under honorable conditions to honorable.  

2.  The applicant states, in effect, that he would like to apply for educational benefits to attend school. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			31 July 2008
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2) 						JKK, RE-4        
e. Unit of assignment:			A Co, 615th Aviation Support Bn, Fort Hood, TX
f. Current Enlistment Date/Term:	4 August 2004, 4 years 
g. Current Enlistment Service:	3 years, 11 months, 27 days
h. Total Service:			3 years, 11 months, 27 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	92F10, Petroleum Supply Specialist
m. GT Score:				109
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (061004-080104)
q. Decorations/Awards:		NDSM, ICM-CS, GWOTSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 31 July 2004, for a period of 4 years.  He was 21 years old at the time of entry and a high school graduate.  He served a combat tour and at the time his discharge was initiated he was stationed at Fort Hood, TX.  The record does not contain any significant achievements, awards, or acts of valor.  


SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows that on 11 July 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for the commission of a serious offense, specifically for wrongfully using marijuana (080427-080527), for which he received a Field Grade Article 15.

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 24 July 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on his behalf in which he asked to be allowed to remain until his scheduled Expiration Term of Service (ETS).  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 28 July 2008, 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 31 July 2008, for misconduct (drug abuse), under the provisions of AR 635-200, paragraph, 14-12c(2), with an SPD code of JKK, and a  reentry code of 4.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Company Grade Article 15 issued on 14 December 2006, for being disrespectful in language to an NCO while in Iraq (061115), disobeying a lawful order from an NCO (061115).  His punishment consisted of reduction to the grade of E-3, forfeiture of pay in the amount of $407.00 (suspended), 14 days of extra duty, and an oral reprimand.

2.  Company Grade Article 15 issued on 9 October 2007, for being disrespectful in language to an NCO (070918), disobeying a lawful order from an NCO (070604).  His punishment consisted of reduction to the grade of E-3, forfeiture of pay in the amount of $426.00 (suspended), 14 days of extra duty, and an oral reprimand.

3.  Company Grade Article 15 issued on 1 April 2008, for being disrespectful in language to 2 NCOs (080221), disobeying a lawful order from an NCO (080221).  His punishment consisted of reduction to the grade of E-2, forfeiture of pay in the amount of $352.00 (suspended), 14 days of extra duty, and an oral reprimand.

4.  Six negative counseling statements dated between 16 November 2006 and 5 June 2008, for offenses related to disobeying lawful orders from NCOs, insubordination, using provoking gestures, failure to pay spousal support, and for a positive urinalysis.
5.  A Mental Status Evaluation conducted on 2 July 2008, which indicates a diagnosis of major depression and PTSD.  The clinical psychologist indicated the applicant was mentally responsible and capable of distinguishing between right and wrong; however, he stated, the applicant’s depressive and PTSD like symptoms contributed to his use of marijuana.  He recommended the Chapter 14 action be postponed pending a trial treatment for 3 months and further reassessment after completion of the treatment.

6.  A positive urinalysis coded as IU (Inspection Unit), dated 27 May 2008, that was positive for marijuana.

7.  The unit commander’s memorandum dated 11 July 2008, in which he notifies the applicant about the separation action indicates he received a Field Grade Article 15 for a violation of Article 111a of the Uniform Code of Military Justice.  The punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $673.00 per month for 2 months, 30 days of extra duty and an oral reprimand.  The actual DA Form 2627, Article 15, is not contained in the record.

EVIDENCE SUBMITTED BY THE APPLICANT 

A form requesting his personnel records and a DD Form 214.

POST-SERVICE ACTIVITY: 

None 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 service record 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 3 Article 15s for multiple violations of the Uniform Code of Military Justice and 6 negative counseling statements.

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

4. 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.   

5.  The applicant requests an upgrade of his discharge in order to allow him 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.

6.  The applicant’s service record contains documentation that supports a diagnosis of in service Post-Traumatic Stress Disorder (PTSD); 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 July 2008, 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.  It appears the applicant’s chain of command determined that although he was suffering from PTSD, 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.

7.  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.  

8.  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:  21 June 2013 	Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: 			No

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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20130002948

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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