IN THE CASE OF:  	Mr.

      BOARD DATE:  	2 October 2013

      CASE NUMBER:  	AR20130006226
___________________________________________________________________________

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 four and a half years honorably which included over a year of combat in Afghanistan.  He should have been able to complete his enlistment and receive an honorable discharge.  The CID Report concluded the substances found were inconclusive and a full forensic examination was not processed.  An upgrade would create so many opportunities for him.  He desires to receive VA benefits to further his education as an electrician.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date 		29 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			29 February 2012
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct , AR 635-200, Chapter 14, 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			602nd Brigade Support Company, 201st Brigade 						Support Battalion, Joint Base Lewis-McChord, WA
f. Current Enlistment Date/Term:	8 March 2011, 3 years
g. Current Enlistment Service:	11 months, 22 days
h. Total Service:			3 years, 5 months
i. Time Lost:				None
j. Previous Discharges:		RA (081001-110307)/HD
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	91D10, Power Generation Equipment Repairer
m. GT Score:				91
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (091215-100115)
q. Decorations/Awards:		NDSM, ACM-W/CS, GWOTSM, ASR, OSR, NATO 						MDL, CAB
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 1 October 2008, for a period of 3 years.  He was 21 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 91D10, Power Generation Equipment Repairer.  His last reenlistment on 8 March 2011was for a period of 3 years and he was 23 years old at the time. His record also shows he served a combat tour, but did not earn any award for acts of valor or meritorious achievements, and he 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 16 December 2011 2005, the unit commander, notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct.  Specifically for the following offense:

     a.  failing to report on divers occasions x 2 (110630, 110809)

     b.  off-roading in an unauthorized area (110717)

     c.  wrongfully possessing pep spice and bath salts (110728)

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 1 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 of the separation; however, he did not recommend a characterization of service.  

4.  On 13 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 29 February 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 28 November 2011 for failing to obey a lawful general order, to wit: JBLM Policy Statement #25, Specific Drug Criminal Offenses, by wrongfully possessing pep spice and bath salts (110728); without authority, failing to go at the time prescribed to his appointed place of duty x 2 (110809, 110630); and disobeying a lawful general regulation, by off roading in a training area section of 3N (110717); the punishment consisted of reduction to E-3, forfeiture of $919 pay x 2 months (suspended), extra duty for 40 days and restriction for 40 days, (FG).

2.  The record contains a Military Police Report, dated 18 July 2011, which indicated the applicant was the subject of an investigation for wrongfully possessing spice and disobeying a general order or regulation.

3.  The record also contains a CID Report of Investigation, dated 4 August 2011, which indicated the applicant was the subject of an investigation for wrongfully possessing spice.

4.  He received 6 negative counseling statements which were completed between 30 June 2011 through15 August 2011, for failing to report, disobeying a lawful order, disobeying a general order, by consuming an unauthorized substance, failing to report, operating his privately owned vehicle (POV) in an unauthorized area, and being recommended for separation action under Chapter 14-12b.

5.  A DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment, dated 28 July 2011.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; page 3 of a law enforcement report, and applicant’s 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.  

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.  By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15, 6 negative counseling statements, CID report of Investigation, ASAP enrollment and a Military Police Report.

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 he served four and a half years honorably which included over a year of combat in Afghanistan.  The evidence of record shows the applicant completed 3 years and 5 months of honorable service and his combat tour was 11 months and 22 days.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge under review.

5.  The applicant further contends he should have been able to complete his enlistment and receive an honorable discharge. Before initiating discharge proceedings, the command ensured the applicant was appropriately counseled about his deficiencies which could lead to separation.  The command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier.  The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies.  As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service and initiated separation action.

6.  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.


7.  The applicant also contends the CID Report concluded the substances found were inconclusive and a full forensic examination was not processed.  The CID Report the applicant cited is dated, 4 August 201, which indicted the applicant wrongfully possessed spice and bath salts.  

8.  The applicant additionally contends an upgrade would create so many opportunities for him.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

9.  The applicant desires to receive VA benefits to further his education as an electrician.

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:  Records Review         Date:  2 October 2013        Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  None

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)		AR20130006226



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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