IN THE CASE OF:  	Mr.

      BOARD DATE:  	2 October 2013

      CASE NUMBER:  	AR20130006179
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, and notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service, and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.  This action entails restoration of grade to E-6/SSG.]



      
      
      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 honorable or general, under honorable conditions.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being about to receive his GI Bill benefit for education and employment.  He contends he was punished and continues to punish himself.  He completed two full terms of service with an honorable discharge.  He is working on getting his life back together and would benefit greatly if his discharge was upgraded.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			27 March 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				3 May 2010
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				A Det, 3rd Bn, 187th IN, Fort Campbell, KY
f. Current Enlistment Date/Term:		12 November 2009, 3 years
g. Current Enlistment Service:		5 months, 22 days
h. Total Service:				9 years, 2 months, 12 days
i. Time Lost:					None 
j. Previous Discharges:			RA-010222-031221/HD											RA-031222-091111/HD
k. Highest Grade Achieved:			E-6
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					110
n. Education:					HS Graduate
o. Overseas Service:				Southwest Asia, Germany
p. Combat Service:				Iraq (030427-040707 and 060929-080925)
q. Decorations/Awards:			ARCOM-2, AAM-3, AGCM-3, ICM-w/2CS, 								NDSM, GWOTEM, GWOTSM, NPDR, ASR, 								OSR-3, CIB, EIB
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No




SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 22 February 2001, for a period of 3 years.  After serving two periods of honorable service he reenlisted on 12 November 2009, for a period of   3 years.  He was 27 years old at the time of reenlistment.  His record indicates he served two periods of combat in Iraq and served in Germany.  He achieved the rank of SSG/E-6, and earned several awards to include two ARCOM's, three AAM's, three AGCM, the CIB and the EIB.  He completed a total of 9 years, 2 months, and 12 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on    30 March 2010, the applicant was charged with the following offenses:

a. violating a lawful general regulation by wrongfully possessing drug paraphernalia (091215)

b. wrongfully using dilaudid (hydromorphone hydrochloride) (100128)

c. wrongfully possessing 10 pills of dilaudid (hydromorphone hydrochloride) (100128)

d. wrongfully injecting himself with a controlled substance in the present of another Soldier (100128)

2.  On 1 April 2010, 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 and intermediate commanders recommended approval of an UOTHC discharge.  

3.  On 19 April 2010, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 3 May 2010, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 

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



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An MP Report dated 2 February 2010, that indicates the applicant was the subject of an investigation for unlawful possession of a prescription medication.

2.  CID Report, dated 10 February 2010, that indicates the applicant was the subject of an investigation for possession of 15 dilaudids, a schedule II narcotic.

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

4.  One NCOER with a through date of 31 January 2010 with an overall rating of fully capable.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided two DD Form 293s and a copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None 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 characterization was carefully considered.  However, after examining the applicant’s record of service, the issue and document 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 an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents several acts of significant achievement and valor; however, these accomplishments did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.

4.  The applicant contends that he had good service which included serving two full terms of enlistment and receiving several awards.  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 incidents of misconduct.  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, he knowingly risked a military career and diminished the quality of his service below that meriting an honorable or general, under honorable conditions discharge.  

5.  The applicant expressed his desire to be able to receive his GI Bill benefits for education and employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  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.  Therefore, the reason and 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:   2 October 2013   Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	General, Under Honorable Conditions
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		E-6/SSG
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)		AR20130006179



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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