IN THE CASE OF:	Mr. 

      BOARD DATE:	7 April 2014

      CASE NUMBER:	AR20130007887
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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 to upgrade his characterization of service from under other than honorable to honorable.

2.  The applicant states, in effect, he has been diagnosed with PTSD; psychotic disorder, NOS; and depressive disorder, NOS.  The issues he faced during his time in service were due to the PTSD.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	23 April 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	17 April 2009 
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	HHT, 1-3 Brigade Troops Battalion, 1st Brigade 
			Combat Team, 3rd Infantry Division, Fort Stewart, GA
	f.	Current Enlistment Date/Term:	27 July 2007, 6 years
	g.	Current Enlistment Service:	1 year, 8 months, 21 days
	h.	Total Service:	3 years, 11 months, 19 days
	i.	Time Lost:	None
	j.	Previous Discharges:	USAR (050429-050503) / NA
			IADT   (050504—051007) / UNC
			USAR (051008-051213) / HD
			RA      (051214-070726) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	63B10, Wheeled Vehicle Mechanic
	m.	GT Score:	98
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (070115-080402)
	q.	Decorations/Awards:	ARCOM; ICM-CS; GWOTSM; ASR; OSR
	r.	Administrative Separation Board: 	Yes
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	Yes, (110207)

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 14 December 2005, and reenlisted on 27 July 2007, for a period of 6 years.  He was 25 years old at the time of entry and had a high school equivalency (GED).  He served in Iraq.  He earned an ARCOM and completed 3 years, 11 months, and 19 days of active duty and reserve service.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 16 October 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 (serious offense) for testing positive for the use of both marijuana and cocaine.

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 24 October 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and requested consideration of his case by an administrative separation board.  The applicant did not indicated whether he was submitting a statement on his own 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 an under other than honorable conditions discharge.  

4.  Subsequently, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 11 February 2009 and 4 March 2009, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.

6.  On 14 April 2009, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

7.  The applicant was discharged from the Army on 17 April 2009, 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), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Civilian court document, dated 7 November 2008, indicates the adjudicated sentence of the applicant’s offenses of aggravated assault and disorderly conduct.

2.  Article 15, dated 3 October 2008, failure to report on 3 occasions (080605, 080606, and 080609), disobeying NCO orders (080606), being disrespectful in language toward an NCO and assaulting an NCO (080812), wrongfully using cocaine (080731-080806), communicating a threat to an NCO (080812).  The punishment consisted of reduction to the grade of E-1, forfeiture of $974 per month for two months, 45 days of restriction, (FG). 

3.  There is a positive urinalysis reports contained in the record:  PO, Probable Cause, 6 August 2008, cocaine.

4.  Military Report, dated 12 August 2008, that indicates the applicant was the subject of an investigation for wrongful possession of marijuana. (02051—MPC093)

5.  Summarized Article 15, dated 8 March 2007, AWOL (061227-061229), drunk on duty (061222).  The punishment consisted of 14 days of extra duty and restriction, (CG) 

6.  MP Intoxilyzer Alcohol Analysis Result, dated 12 August 2008, that indicates the result of .109 for a test administered on the applicant. 

7.  Two negative counseling statements, dated 4 January 2007, for being AWOL and drunk on duty.

8.  MP Intoxilyzer Alcohol Analysis Result, dated 22 December 2006, that indicates a result of .101 for a test administered on the applicant.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided congressional correspondence, dated 12 March 2013; a medical diagnosis review rendered by a Department of Human Services, dated 27 February 2013.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 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 general or a fully honorable discharge.  The applicant’s record of service was marred by two Articles 15 actions for multiple violations of the Uniform Code of Military Justice and 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 he was diagnosed with Post-Traumatic Stress Disorder (PTSD), and that his issues during his service were due to PTSD.  However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that on 10 September 2008, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that although he was suffering from mental health issues, he knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same condition that completed their service successfully.

5.  Regarding the applicant’s psychiatric evaluation report that indicates he is ineligible for services through VA, because he does not have service connected status, 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.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

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:  Personal Appearance       Date:  7 April 2014     Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: yes [recacted]  

Witnesses/Observers: Yes – Observer - Mother

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or contentions.

2.  In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

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)		AR20130007887

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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