IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 September 2013

      CASE NUMBER:  	AR20130003830
___________________________________________________________________________

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 discharge from general, under honorable conditions to honorable.

2.  He states, in effect, his discharge was inequitable because it was based on an isolated incident during 29 months of service with no other adverse action.  He was diagnosed with Post Traumatic Stress Disorder (PTSD) and Mild Traumatic Brain Injury (MTBI) and did not receive proper treatment but was discharged instead.  He feels he was unfairly discharged.  He felt sick after returning from combat and resorted to his own method of healing.  He found it difficult readjusting to civilian life and he was denied unemployment benefits.  He desires to receive VA benefits.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			15 March 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			HHC, 864th Engineer Battalion, Joint Base Lewis-						McChord, WA
f. Current Enlistment Date/Term:	3 March 2009, 3 years and 19 weeks
g. Current Enlistment Service:	3 years, 13 days
h. Total Service:			3 years, 13 days
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	12V10, Concrete and Asphalt Equipment Operator
m. GT Score:				89
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (100328-110327)
q. Decorations/Awards:		ARCOM, NDSM, ACM-CS, GWOTSM, ASR, OSR, 						NATO MDL
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No







SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 3 March 2009, for a period of 3 years and 19 weeks.  He was 20 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 12V10, Concrete and Asphalt Equipment Operator.  His record also shows he served a combat tour, earned an ARCOM and achieved the rank of SPC/E-4.  He was serving at Joint Base Lewis-McChord, WA when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 15 February 2012, 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 of misconduct- abuse of illegal drugs for wrongfully possessing spice (110718).

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 15 February 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted 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.

4.  On 29 February 2012, 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’s service record does not contain any evidence of unauthorized absences or time lost.

6.  The applicant was discharged from the Army on 15 March 2012, 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, a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 10 January 2012 for wrongfully possessing drug paraphernalia x 3 (110718, 110718, 100429); and wrongfully using spice (100429); the punishment consisted of reduction to E-1, forfeiture of $733 pay x 2 months, extra duty for 45 days and restriction for 45 days, (FG).



2.  The record of evidence also contains Multiple Criminal Investigation Division Command reports related to the applicant's use of spice dated 18 July 2011 (including the applicant's sworn statement in which he admitted to using 'Spice'), dated 13 September 2011,                 23 September 2011 and 16 November 2011. 

3.  The applicant’s pre-separation physical which found no diagnosis of any medical conditions, dated 1 September 2011.

4.  The applicant's behavioral health pre-separation screening, dated 15 September 2011 in which he was evaluated for both mTBI and PTSD with the conditions either not being found or, if present, not meeting the requirement for a medical evaluation board per AR 40-501.

5.  He received a negative counseling statement, dated 18 July 2011 for possessing drug paraphernalia.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, Memorandum for Record, Additional Matters for the Command’s Consideration, Memorandum for Record, Pre-Chapter Education Counseling, and applicant’s handwritten statement.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 his military record, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.

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/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 an Article 15 and a CID Report of Investigation.

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 contends his discharge was inequitable because it was based on an isolated incident during 29 months of service with no other adverse action.  However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline  

5.  The applicant further contends he was diagnosed with PTSD and MTBI and did not receive proper treatment but was discharged instead.  A review of the record shows that while he was a positive screen for both conditions, the attending psychologist found the conditions either not present or, if present, not meeting the requirement for a medical evaluation board in accordance with AR40-501.  The evaluation goes on to state that while the applicant was participating in the Army's substance abuse program, he had no Axis 1(Psychiatric Condition) diagnosis beyond record references to "Alcohol Dependence" and "Cannabis-related abuse," no Axis II (Personality and Intelligence Disorders) diagnosis; and, no Axis III (Medical Conditions) diagnosis.  Finally, this evaluation determined the applicant knew the difference between right and wrong and was concurrently cleared for any administrative actions.


6.  The applicant also contends he feels he was unfairly discharged.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.  The applicant’s statement alone does 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.

7.  Further, 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.  The applicant additionally contends he felt sick after returning from combat and resorted to his own method of healing.  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 action under review.  

9.  Furthermore, the applicant contends he found it difficult readjusting to civilian life and he was denied unemployment benefits.  However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.  

10.  The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

11.  The applicant desires to receive VA benefits.  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.

12.  Finally, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

13.  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:  27 September 2013   Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  Yes (redacted)

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)		AR20130003830



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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