IN THE CASE OF:  	Mr.

      BOARD DATE:  	12 August 2013

      CASE NUMBER:  	AR20130003786
___________________________________________________________________________

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 to be 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 his under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that he has been diagnosed with PTSD and has been turned down by the VA because of his discharge.  He was injured in Afghanistan when he was carrying a machine gun down the stairs.  He became addicted to pain medications he was taking for his injuries.  In an effort to continue serving, he supplemented his medication with pills given to him by fellow Rangers, but soon after that he started to purchase stronger illegal drugs and at that point he realized he had crossed the line.  He admits to collaborating with other Soldiers to purchase prescription drugs, but denies selling drugs to anyone.  He also admits to being set up into delivering drugs to a CID agent.  His medical problems have never been properly addressed and he is still experiencing excruciating back pain.  He asks for an upgrade of his discharge in order to receive the proper healthcare so he can return to being a productive citizen and maybe even a Soldier. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			19 February 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				17 December 2009
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, AR 635-200, 								Chapter 10, KFS, RE-4
e. Unit of assignment:				A Co, 2d Bn, 75th Ranger Rgt, Fort Lewis, WA
f. Enlistment Date/Term:			1 July 2008, 4 years and 19 weeks
g. Current Enlistment Service:		1 year, 4 months, 17 days
h. Total Service:				1 year, 4 months, 17 days
i. Time Lost:					31 days 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		11B1P, Infantryman
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Afghanistan (090125-090514)
q. Decorations/Awards:			NDSM, ACM-CS, GWOTSM, ASR,
NATO MDL, CIB
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 1 July 2008, for a period of 4 years and 19 weeks.  He was 18 years old at the time of entry and was a high school graduate.  His record indicates he served a tour of combat in Afghanistan and had no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet, which indicates that on 24 September 2009, the applicant was charged with the following offenses:

a. wrongfully distribute some amount of oxycontin, a controlled substance, on divers   occasions between (090707-090731)
      b. wrongfully distribute some amount of oxycontin, a controlled substance (090814) 
      c. AWOL (090814-090823)

2.  On 24 November 2009, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant submitted a statement on his own behalf.  The unit commander recommended approval of the discharge with a characterization of under other than honorable conditions.  

3.  On 3 December 2009, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 17 December 2009, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record shows two periods of lost time.  AWOL for 31 days (091019-091118), and again AWOL for 10 days (090814-090823).  The mode of return is not contained in the record.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no negative counseling’s or actions under the Uniform Code of Military Justice.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided no supporting documents with his application.


POST-SERVICE ACTIVITY: 

None were provided with the application.  

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2.  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.

3.  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.  

DISCUSSION AND RECOMMENDATION:

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

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested a discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The applicant contends that he was being set up into delivering drugs to a CID agent.  His medical problems have never been properly addressed and he is still experiencing excruciating back pain and was diagnosed with PTSD from the trauma he encountered from killing the enemy and seeing his friends get hurt.  He asks for an upgrade of his discharge in order to receive the proper healthcare so he can return to being a productive citizen and maybe even a Soldier.  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.  Further, eligibility for veteran's benefits to include medical and 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 continue to contact a local office of the Department of Veterans Affairs for further assistance.  

4.  The applicant's incident’s of misconduct on 24 September 2009, adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  

5.  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.  

6.  The applicant desires to rejoin the Military Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table 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.

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
























SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review   Date:  12 August 2013	Location: Washington, DC

Did the Applicant Testify?  No

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)		AR20130003786

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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