IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 December 2013

      CASE NUMBER:  	AR20130008068
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that since his discharge in 2005, his life has not been the same.  He was denied an upgrade to his discharge in 2009.  Since 2005, he has tried to rebuild his life.  Prior to being call to active duty, his life style and conditions were comfortable because he was married with a thriving business.  He regrets what took place prior to testing positive during the urinalysis.  The death of his mother had an negative effect on his performance of duty.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			25 April 2013 	
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				28 April 2005
d. Reason/Authority/SPD/RE Code:		Misconduct, AR 635-200, 14-12c(2), JKQ, 							RE-4	
e. Unit of assignment:				A Co, MSB, Fort McCoy WI	
f. Current Enlistment Date/Term:		8 October 2004/ NIF
g. Current Enlistment Service:		0 years, 6 months, 21 days
h. Total Service:				12 years, 0 months, 18 days
i. Time Lost:					None
j. Previous Discharges:			USAR/821217-830209/NA											ADT/830210-830607/UNC											USAR/830608-881129/NA											USAR/881130-881216/NA											USAR/910930-930816/UOTH										ARNG/010228-011220/HD											USARCG/011221-041007/NA(Concurrent Svc)
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		88M10/Motor Transport Operator 
m. GT Score:					95
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			AAM, NDSM-2, GWOTSM, 										AFRM(w/M Device)
r. Administrative Separation Board: 		No
s. Performance Ratings:			No
t. Counseling Statements:			Yes
u. Prior Board Review:				Yes, (091113), denied



SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army Reserve on 30 November 1988 for a period of three years.  He reenlisted on several occasions, and attained the grade of E-5.  He was 25 years old at the time and was a high school graduate.  When his discharge proceedings were initiated he was serving at Fort McCoy, WI.  His record reflects he was awarded an AAM, NDSM-2, GWOTSM and an AFRM (w/M Device).  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 22 February 2005, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c, specifically for the commission of a serious offense for wrongful possession and use of cocaine on 23 November 2004.

2.  Based on the above misconduct, the commander recommended an under other than honorable conditions discharge.

3.  On 22 February 2005, 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 contingent upon receiving a general, under honorable conditions discharge and did not submit a statement on his behalf.  

4.  On 6 April 2005, after further consultation with his legal counsel, the applicant decided against appearing before an administrative board and voluntarily waived consideration of his case by an administrative separation board.  The unit commander and senior intermediate commanders recommended discharge from the Army with a characterization of service of under other than honorable conditions.  

5.  On 27 April 2005, the separation authority approved, and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

6.  The applicant was separated on 28 April 2005, under Army Regulation 635-200, Chapter 14-12c(2), with a general, under other than honorable conditions discharge, an SPD code of JKK, and an RE code of 4.  The applicant was reduced to the lowest rank.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is one positive urinalysis report contained in the record:

      IU, Inspection Unit, 23 November 2004, cocaine

2.  Article 15, dated 19 January 2005, wrongful use of cocaine (041123).  Punishment consisted of a reduction to E-4; extra duty for 45 days, and restriction from using alcohol for 45 days (FG).

3.  A General Officer Memorandum of Reprimand dated 28 January 2005, for discharge procedures for possible separation pursuant to Chapter 14-12c(2), AR 635-200, for wrongful use of cocaine.

4. Army Substance Abuse Program Enrollment, dated 27 December 2004.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 21 April 2013; a discharge order dated 28 April 2005; and a DD Form 214.

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 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 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, 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 a violation of the Uniform Code of Military Justice and a 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 was having a hard time dealing with his mother’s death which affected his behavior and ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

5.  The applicant contends that prior to entering the Army he was living a comfortable life and had a thriving business.  The applicant’s prior service accomplishments have been noted as outlined in the application; however, in review of the applicant’s entire service record and the reasons for the discharge, it appears these accomplishments did not overcome the reason for discharge and characterization of service granted.

6.  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:  9 December 2013   Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel:  None

Witnesses/Observers:  None 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted no additional documents or contentions.

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


Board Vote:
Character Change:  2	No Change:  3
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)		AR20130008068



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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