IN THE CASE OF:  	

      BOARD DATE:  	16 October 2013

      CASE NUMBER:  	AR20130006427
___________________________________________________________________________

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, that he was unjustly discharged and that his current characterization of service does not truly describe his service.  He contends he served honorable for 11 years with countless NCOERs in his record that will show the character of noncommissioned officer and Soldier he was.  In 2009 after the loss of his son and niece he attempted to mourn and piece his broken family back together and in the process he lost himself to alcoholism.  He believes he was not properly represented and his command did not support him nor did they attempt to help.  His misconduct was the first offense of this type in his entire career.  He doesn't believe he deserved to be discharged after giving everything he had to his country.  He was a fast tracking E-6 and stood a chance of making E-7 on his first look.  He admits all his actions during the time of his misconduct were not those of a noncommissioned officer, but due to multiple unforeseen tragedies his judgment was clouded.  He believes all people deserve a second opportunity to put their lives back together and asks for a chance to restart and take care of himself.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		29 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			20 January 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			HHC, 82d Special Troops Bn, Fort Bragg, NC
f. Current Enlistment Date/Term:	12 September 2007, 5 years
g. Current Enlistment Service:	4 years, 4 months, 7 days
h. Total Service:			12 years, 6 months, 0 days
i. Time Lost:				2 days
j. Previous Discharges:		RA-990720-031220/HD										USARCG-031221-040927/NIF									RA-040928-070911/HD
k. Highest Grade Achieved:		E-6	
l. Military Occupational Specialty:	74D2P, Chemical Ops Specialist 
m. GT Score:				115
n. Education:				HS Graduate
o. Overseas Service:			Korea, Southwest Asia
p. Combat Service:			Afghanistan (071218-080204) and Iraq (030501-						030921)
q. Decorations/Awards:		ARCOM, AAM-4, AGCM-2, ACM-w/CS, NDSM 						GWOTEM, GWOTSM, KDSM, NPDR, ASR, OSR-2 						NATOMDL
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No	
SUMMARY OF SERVICE:		

After serving in the United States Army Reserve and two periods on active duty, the applicant reenlisted in the Regular Army on 12 September 2007, for a period of 5 years.  He was 26 years old at the time of reenlistment and a high school graduate.  He was serving at Fort Bragg, NC when his discharge was initiated.  His record indicates he served in Afghanistan and Iraq and earned several awards to include an ARCOM, four AAM's, and two AGCM's.  He completed a total of 12 years and 5 months of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 3 November 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason misconduct (serious offense).  Specifically for the following offenses: 

a. wrongful use of marijuana between (100421 and 100521)
b. being absent without leave on or about (101025 and 101027)
c. disrespecting a superior commissioned officer (101115)
d. failing to report to duty on (101115 and 101116)

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 7 November 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions 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 with a general, under honorable conditions discharge.  

4.  On 21 November 2011, the applicant requested a waiver of his Medical Evaluation Board processing in lieu of being processed for administrative separation under Chapter 14-12c(2) with a characterization of service of general, under honorable conditions.


5.  On 9 December 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

6.  The applicant was discharged from the Army on 20 January 2012, with a characterization of service of general, under honorable conditions 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. 

7.  The applicant's record of service indicates 2 days of time lost for being AWOL from           25 October 2010 until his return on 27 October 2010.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A memorandum, dated 10 June 2010 "Positive Drug Testing Results, indicating the applicant tested positive for THC 50ng IR/A on 21 May 2010.

2.  A letter of offering to plead guilty of all charges against him, dated 30 March 2011, at an Article 15 hearing.  

3.  Article 15, imposed on 11 May 2011, for the wrongful use of marijuana between (100421 and 100521) and going AWOL (101025 to 100527).  Punisment consisted of reduction to the grade of E-5, forfeiture of $1,473.00 pay for one month (suspended), and extra duty for          45 days (FG).

4.  The record contains two NCO Evaluation Reports (NCOERs), with throught dates of         30 June 2008 and 30 June 2009 (overall ratings of Among the Best).

5.  Three negative counseling statements dated between 22 September 2010 and                  15 November 2010, for testing positive for THC on a company urinalysis, failure to report, and being disrespectful towards a superior commissioned officer

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application.

POST-SERVICE ACTIVITY: 

None provided 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 for his discharge was carefully considered.  However, after examining her military records, 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 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 an honorable discharge.  The applicant’s record of service was marred by an Article 15 for violations of the Uniform Code of Military Justice and several 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 11 years of honorable service in which he received several awards to include an ARCOM, four AAM's, and two AGCM's.  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 incident of misconduct or by the multiple negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice.

5.  The applicant also contends he received poor representation from his chain of command. 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 evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by his enrollment in the ASAP.  He relapsed twice during program enrollment which resulted in him being administratively released from the program.

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:  16 October 2013	         Location: Washington, DC

Did the Applicant Testify?  NA 

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 Authority for Separation:		No Change
Change RE Code to:			No Change
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)		AR20130006427

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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