IN THE CASE OF:  	Mr.

      BOARD DATE:  	21 August 2013

      CASE NUMBER:  	AR20130003947
___________________________________________________________________________

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 under other than honorable conditions to general, under honorable conditions.  

2.  The applicant states, in effect, that he is trying to get medical benefits for PTSD and numerous other physical ailments.  He had 17 plus years of good service.  He is not trying to make excuses for using marijuana; however, after his second deployment, he returned home to a very bad situation.  His wife had left him with an empty house that was in foreclosure, taken the kids, overwhelming debt, financially broke, a vehicle repossession and the other car didn’t work.  Since his discharge, he has been unable to keep a job due to a sleeping disorder, PTSD and other medical issues.  The problem has always been making it to work on time.  Once he gets there, his job performance has been excellent.  Never once has he lost a job due to performance.  His inability to make it to work on time has resulted in him being homeless on several occasions.  Upgrading his discharge would enable him to get the necessary treatment for his medical conditions, be able to go to school, be a productive member of society, be able to support and take care of his daughter and son, and be able to hold and keep a job.  His ultimate desire is to be re-instated to active duty Army.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 February 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			30 March 2011
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2) 						JKK, RE-4        
e. Unit of assignment:			HHC, 15th Brigade Support Battalion, 2d Brigade 						Combat Team, 1st Cavalry Division, Fort Hood, TX 
f. Current Enlistment Date/Term:	5 June 2007, Indefinite
g. Current Enlistment Service:	3 years, 9 months, 25 days
h. Total Service:			14 years, 6 months, 26 days
i. Time Lost:				None
j. Previous Discharges:		RA (960906-981101), HD										RA (981102-010214), HD										RA (010215-040418), HD										RA (040419-070604), HD
k. Highest Grade Achieved:		E-7	
l. Military Occupational Specialty:	92G1F, Food Service Specialist
m. GT Score:				120
n. Education:				HS Graduate
o. Overseas Service:			SWA x 3
p. Combat Service:			Kuwait (990901-991220)										Iraq (070211-080422 and 090107-100110)
q. Decorations/Awards:		BSM, ARCOM-2, AAM-7, AGCM-4, NDSM, AFEM,  						ICM-w/CS-2, GWOTEM, GWOTSM, HSM, NPDR-2 						ASR, OSR-4					
r. Administrative Separation Board: 	Yes (110102)
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 5 September 1996, for a period of 3 years.  He was 20 years old at the time of entry and was a high school graduate.  The applicant reenlisted on four different occasions and served a total of 14 years, 6 months, and 26 days.  He was serving at Fort Hood, TX when his discharge was initiated.  He was awarded a BSM, two ARCOMs, seven AAMs, and four AGCMs.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for commission of a serious offense, specifically for receiving a summary court-martial for wrongfully using marijuana on three occasions (100216, 100317, and 100421).

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.  

3.  The applicant consulted with legal counsel and requested consideration of his case by an administrative separation board.  The applicant did not submit a statement on his own 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 an under other than honorable conditions discharge.  

4.  On 20 December 2010, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 6 January 2011, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.
  
6.  On 6 January 2011, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than conditions.

7.  The applicant was discharged from the Army on 30 March 2011, with a characterization of service of under other than 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. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  On 14 June 2010, the applicant agreed to plead guilty to all three specifications of the summary court-martial for wrongfully using marijuana on three occasions (between 100118-100216, 100216-100317, and 100323-100421).

2.  Two negative counseling’s dated 4 March 2010 and 30 March 2010, for testing positive for marijuana.  

3.  There are three positive urinalysis reports contained in the record with the following codes and dates:

	a.  IU (Inspection Unit), dated 16 February 2010.

	b.  IR (Inspection Random), dated 17 March 2010.

	c.  IR, dated 21 April 2010.

4.  Eleven successful NCOERs covering the period August 2000 through February 2010.  Of note, the applicant did not have a NCOER covering the period of the misconduct.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 293, DD Form 214, a self-authored statement (listed seven references with contact info); six NCOERs, and a copy of a BSM.

POST-SERVICE ACTIVITY: 

The applicant states that it is difficult to maintain a job without proper treatment for his medical conditions.  

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 non-commissioned officer.  The applicant, as an NCO, 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 summary court-martial for multiple violations of the Uniform Code of Military Justice and two negative counseling statements.

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 that he had good service which included over 17 (sic) years of service to include 2 combat tours.  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 misconduct.

5.  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 action under review.  

6.  The applicant has expressed his desire to rejoin the Service, to have better job opportunities and the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 4.  An RE code of 4 cannot be waived and the applicant is not eligible to reenlist.  Further, 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.

7.  The applicant contends he has PTSD.  However, 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.  

8.  The applicant contends that he was homeless on different occasions.  However, eligibility for housing supportive program benefits for Veterans 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.  Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance.

9.  The records show the proper discharge and separation authority procedures were followed in this case.  

10.  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:  Record Review 	  Date:  21 August 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)		AR20130003947



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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