IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 August 2013

      CASE NUMBER:  	AR20130005262
___________________________________________________________________________

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.  He states, in effect, his discharge was inequitable because it was based on an isolated incident during 21 months of service with no other adverse action.  He was off duty when the incident occurred; a Soldier from his unit did the same and was reclassified not chaptered out of the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 March 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			10 March 2008
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			11th Quartermaster Company, 82nd Brigade Troops 						Battalion, Fort Bragg, NC
f. Current Enlistment Date/Term:	8 August 2006, 4 years
g. Current Enlistment Service:	1 year, 6 months
h. Total Service:			1 year, 6 months
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92R1P, Parachute Rigger
m. GT Score:				120
n. Education:				14 years
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		GWOTSM, ASR
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 8 August 2006, for a period of 4 years.  He was 21 years old at the time of entry and had completed two years of college.  He was trained in and awarded military occupational specialty (MOS) 92R1P, Parachute Rigger.  The record does not contain any combat service or evidence of acts of valor or meritorious achievements.  He was serving at Fort Bragg, NC, when his discharge was initiated and he achieved the rank of PFC/E-3.  


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 20 February 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c AR 635-200, by reason of misconduct-commission of a serious offense for testing positive for cocaine (071210).

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.  On 20 February 2008, the applicant waived legal counsel, was advised of the impact of the discharge action, unconditionally waived consideration of his case by an administrative separation board 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 and senior commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge.  

4.  On 28 February 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than 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 10 March 2008, with a characterization of service of an under other than honorable conditions discharge under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), with 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 7 February 2008 for wrongfully using cocaine (071216-071219); the punishment consisted of reduction to E-1, forfeiture of $670 pay x 2 months, extra duty for 45 days and restriction for 45 days, (FG).

2.  He received a negative counseling statement dated 7 January 2008, for using illegal drugs and enrollment in the Army Substance Abuse Program (ASAP).

3.  The record of evidence contains a positive urinalysis report coded IU (Inspection Unit), dated 10 December 2007 for cocaine

4.  The updated recommendation for separation signed by Col O., BDE CDR, cites a DUI with no additional information.


EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293.

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 records 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 a fully honorable or a general discharge.  The applicant’s record of service was marred by an Article 15, a negative counseling statement and a positive urinalysis report.

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 twenty-one months of service with no other adverse action.  Although an isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization of service.  

5.  The applicant further contends he was off duty when the incident occurred; a Soldier from his unit did the same and was reclassified not chaptered out of the Army.  However, 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.  Furthermore, the VA rating decision is acknowledged for several service connected medical conditions which indicated the applicant was granted a 50% disability rating.  However, in review of the applicant’s entire service record and the reason for the discharge, these medical conditions did not overcome the reason for discharge and characterization of service granted.

7.  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:  23 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)		AR20130005262



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1