IN THE CASE OF:  

      BOARD DATE:  	28 August 2013

      CASE NUMBER:  	AR20130004772
___________________________________________________________________________

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.  The applicant states, in effect, he served in Iraq and Kuwait for a total of 15 months and gave his all under harsh circumstances.  He would like the opportunity to serve again in a war setting and he recognizes the mistakes he made.  It was his life dream to serve in the military.  He was a stellar Soldier aside from his addictions, which he finally overcame.  He was not offered a chance for rehabilitation. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			15 June 2009
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2) 						JKK, RE-4        
e. Unit of assignment:			F Company, 526th Brigade Support Battalion, 2nd 						Brigade Combat Team, 101st Airborne Division (Air 						Assault), Fort Campbell, KY
f. Current Enlistment Date/Term:	20 November 2006, 3 years, 18 weeks	 
g. Current Enlistment Service:	2 years, 6 months, 22 days
h. Total Service:			2 years, 6 months, 22 days
i. Time Lost:				AWOL for 3 days (090320-090323)
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2	
l. Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:				92
n. Education:				GED
o. Overseas Service:			SWA
p. Combat Service:			Iraq (071014-081120)
q. Decorations/Awards:		NDSM, ICM-w/CS, GWOTSM, OSR, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 20 November 2006, for a period of 3 years and 18 weeks.  He was 20 years old at the time of entry and had a high school equivalency (GED).      He was serving at Fort Campbell, KY, when his discharge was initiated.  The applicant’s record does not show any significant achievements or acts of valor.  


SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows that on 14 May 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for commission of a serious offense, abuse of illegal drugs, specifically for:

a.  receiving a Summary Court-Martial for testing positive for cocaine (090109).
b.  going AWOL (between 090320-090324). 
c.  receiving CG Article 15 for sleeping on guard duty (071212).
d.  receiving a FG Article 15 for failing to go to your appointed place of duty on two occasions, disrespecting a NCO (070912).
e.  testing positive for cocaine (070912).
f.  sleeping during guard duty (091127).

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 21 May 2009, the applicant waived legal counsel, was advised of the impact of the discharge action 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 of the separation with a general, under honorable conditions discharge.  

4.  On 28 May 2009, 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 15 June 2009, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with an RE code of 4.

6.  The service record shows the applicant was AWOL for 4 days (090320-090323).  

7.  The record also contains two positive urinalysis coded as IR (Inspection Random), dated      5 December 2007 and 2 January 2008, that were positive for marijuana.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Summary Court-Martial, dated 20 April 2009.  The applicant was found guilty of wrongful use of cocaine (between 090105-090109), and AWOL (between 090320-090324).  The punishment imposed consisted of a reduction to E-1; forfeiture of $933.00 and 30 days confinement.

2.  FG Article 15, dated 4 December 2007, for two violations of failing to report, disrespecting a  NCO; using of cocaine; and misbehaving as a sentinel.  The punishment imposed consisted of a reduction to E-1, forfeiture of $700.00 for two months, 45 days of restriction and 45 days of extra duty.

3.  CG Article 15, dated 11 January 2008, for Misbehaving as a sentinel.  The punishment imposed consisted of a reduction to E-1, forfeiture of $303.00, 14 days extra duty and 14 days restriction.

4.  Numerous counseling’s covering the period 10 February 2009 through 18 March 2009, for being having a positive urinalysis cocaine (3rd time), failures to report, AWOL, and revoking his driving privileges.  

EVIDENCE SUBMITTED BY THE APPLICANT 

A DD Form 293 and DD Form 214.

POST-SERVICE ACTIVITY: 

None were stated by the applicant. 

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 that 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 service below that meriting an honorable discharge.  

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 serving in Iraq and Kuwait.  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 his serious offense of abusing an illegal drug.  

5.  The applicant has expressed his desire to rejoin the Service, to have better job opportunities, benefits of the GI Bill, and get what a veteran deserves.  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.

6.  The applicant contends he was not afforded the opportunity for a rehabilitation transfer; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

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:  28 August 2013      Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
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)		AR20130004772



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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