IN THE CASE OF:  	Mr.

      BOARD DATE:  	23 October 2013

      CASE NUMBER:  	AR20130006950
___________________________________________________________________________

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 tested positive for cocaine use in September 2004.  He contends he was unjustly discharged.  He was coerced into accepting the charges and a Field Grade Article 15 by his chain of command and was continually sent on deployments to keep him from consulting with counsel and seeking the justice he was due.  He served honorably for 17 years prior to this incident including several combat tours.  From the day he arrived at his unit he was treated badly.  He had no other recourse but accept the treatment he received.  He was constantly harassed by his command and was denied promotion as well as being constantly deployed while others received time off.  He does not believe he was given adequate options in representing himself due to an extremely antagonistic command climate.  He does not excuse his behavior but sometimes there are mitigating circumstances as in this case.  His behavior became erratic due to the constant berating and belittling.  He sought solace in alcohol, and still to this day does do not remember using any type of drug.  He states that since his discharge he has received counseling for the issues including severe PTSD.  He no longer drinks and has not done so for 4 years.  He is a productive member of society and has managed to become a Nurse and an IT professional.  He requests that his records be expunged.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			26 August 2005
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14 								paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			C Co, 1st Bn, 393rd Regt, Fort Chaffee, AR
f. Current Enlistment Date/Term:	24 October 2000, Indefinite
g. Current Enlistment Service:	4 years, 10 months, 3 days
h. Total Service:			17 years, 11 months, 11 days
i. Time Lost:				None
j. Previous Discharges:		RA-870916-910508/HD										RA-910509-930909/HD										RA-930910-970122/HD										RA-970123-001023/HD
k. Highest Grade Achieved:		E-7
l. Military Occupational Specialty:	11B40, Infantryman
m. GT Score:				118
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia, Korea, Germany
p. Combat Service:			Saudi Arabia/Kuwait (Feb – May 1991)
q. Decorations/Awards:		ARCOM-5, AAM-5, AGCM-3, NDSM-2, KDSM, 						KLM(K), KLM(SA), AFEM, SWAM-w/3BS, NPDR-3, 						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:	

After serving four periods of enlistment in the Regular Army for a total 14 years, 1 month, and 8 days, the applicant reenlisted in the Regular Army on 24 October 2000, for an indefinite period of time.  His records indicate he served in Saudi Arabia/Kuwait, Korea, and Germany.  He achieved the rank of E-7/SFC and earned several awards to include five ARCOM's, five AAM's, three ACGM's, the CIB, and EIB.  He was serving at Fort Chaffee, AR when his discharge was initiated.  He completed 17 years, 11 months, and 11 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 28 June 2005, 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 (serious offense), for the wrongful use of cocaine between (040907 and 040913).
 
2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  The applicant consulted with 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 commanders reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  

4.  On 11 August 2005, the separation authority approved the applicant's unconditional waiver request 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 26 August 2005, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 4 October 2004, for the wrongful use of cocaine between (040907 and 040913).  The punishment consisted of forfeiture of $1,609.00 and extra duty for 45 days (FG).

2.  Two negative counseling statements dated between 15 October 2004 and 22 November 2004, for testing positive on a urinalysis test 13 September 2004 and consideration for elimination from the service under the provisions of Chapter 14.
      
3.  The record contains six NCO Evaluation Reports (NCOERs), with through dates of 0012, 0107, and 0207 (overall rating of among the best), 0302 (overall rating of fully capable), 0310 (overall rating of marginal), and 0404 (overall rating of fully capable).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149 and copy of a record of proceedings under Article 15, UCMJ for a prior period of service.  The applicant indicated on his application he was submitting a copy of his vocational nursing license, Microsoft Certified trainer certification card, and a character reference letter from his wife; however, these documents were not attached to the application.

POST-SERVICE ACTIVITY: 

The applicant states he is a productive member of society and has managed to become a nurse and an IT professional.  The applicant indicated on his application he was submitting a copy of his licensed vocational nursing license, Microsoft Certified trainer certification card, and a character reference letter from his wife; however, these documents were not found attached to the applicant's 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 the applicant’s record of service, his military records, the documents 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.  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 the Article 15 for violation of the Uniform Code of Military Justice and the negative counseling statement.

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 17 years of good service to include several awards and combat service.  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, the negative counseling statement, and the documented action under Article 15 of the Uniform Code of Military Justice.

5.  Furthermore, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge.  



6.  The applicant contends he was unjustly discharged.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged or unfair treated  The applicant’s statement alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

7.  The applicant indicated in his applicant that since his discharge he has received counseling for the issues including severe PTSD.  The applicant's service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

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:  23 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)		AR20130006950



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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