IN THE CASE OF:  Mr. 

      BOARD DATE:  	4 December 2013

      CASE NUMBER:  	AR20130008677
___________________________________________________________________________

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 characterization from under other than honorable conditions to honorable.

2.  He states, in effect, he served three years of his three year contract and was deployed for a year.  No one prepared him for the transfer from air assault Soldier to diaper duty.  He was unable to function mentally and made bad decisions; he wanted to feel something and started using drugs.  He self referred to rehabilitation; he did not have a drug problem but had emotional issues.  After he completed inpatient outpatient and rehabilitation, he returned to his unit, Soldiers that deployed with him understood his situation; a new chain of command felt he was an embarrassment to the unit and wasted taxpayer’s money.  He desires to serve his country again.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 May 2013
b. Discharge Received:		Under Other Than Honorable Conditions 
c. Date of Discharge:			19 October 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			D Co, 3-187th Infantry Regiment, 3rd Brigade 							Combat Team, Fort Campbell, KY
f. Current Enlistment Date/Term:	6 November 2008, 3 years and 18 weeks
g. Current Enlistment Service:	2 years, 11 months, 14 days 
h. Total Service:			2 years, 11 months, 14 days
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				104
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (100329-110130)
q. Decorations/Awards:		ARCOM, NDSM, ACM-W/CS, GWOTSM, ASR, OSR, 					NATO MDL, CIB
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 6 November 2008, for a period of 3 years and 18 weeks.  He was 23 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  His record also shows he served a combat tour, earned several awards including an ARCOM and CIB; and achieved the rank of SPC/E-4.  He was serving Fort Campbell, KY when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 8 September 2011, 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-commission of a serious offense.  Specifically for the following offenses:

     a.  wrongfully used cocaine on two separate occasions (110705-110714) and (110715-110725)

     b.  failed to go at the time prescribed to his appointed place of duty x 3 (110620, 110513, 110512)

     c.  failed to provide adequate supervision and nutrition to his three children, as well
as exposing them to drugs

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 14 September 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of 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 an under other than honorable conditions discharge.

4.  On 16 September 2011, the senior commander reviewed the proposed action and recommended disapproval of the conditional waiver request with an under other than honorable conditions discharge.

5.  On 4 October 2011, the applicant consulted with legal counsel again, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board and did not submit a statement on his behalf.

6.  On 5 October 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

7.  The applicant’s record does not document any unauthorized absences or lost time.

8.  The applicant was discharged from the Army on 19 October 2011, with a characterization of service of under other than 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. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 25 August 2011 for without authority, fail to go at the time prescribed to his appointed place of duty, ASAP appointment (110620); and wrongfully using cocaine x 2 (110705-110714) and (110715-110725): the punishment consisted of reduction to E-1, forfeiture of $733 pay x 2 months, extra duty for 45 days and restriction for 45 days, (FG).

2.  An Article 15, dated 19 July 2011 for without authority, fail to go at the time prescribed to his appointed place of duty x 2 (110513, 110512), the punishment consisted of reduction to    E-3, forfeiture of $429 pay x 1 month, extra duty for 14 days and restriction for 14 days, (CG).

3.  The record contains a CID Report of Investigation, dated 5 August 2011 which revealed the applicant was under investigation for wrongfully using cocaine.

4.  The record of evidence also contains nine negative counseling statements, completed between dated 9 May 2011 and 29 August 2011 for disobeying an order to get a haircut, failing to report on numerous occasions, forgery, wrongfully using and possessing controlled substances, notification of separation, and being discharged under provision of Chapter 14-12c. 

5.  DA Form 3822-R (Report of Mental Status Evaluation), dated 22 July 2011, which indicated no past psychiatric history noted, service member declined services at this time and the service member is psychiatrically cleared for Chapter 14-12b consideration per his command. 

6.  Three DA Forms 2823 (Sworn Statement), dated 1 August 2011 (2) and 2 August 2011 which indicated the applicant and another Soldier were using cocaine.

7.  The record of evidence contains a positive urinalysis report coded IU (Inspection Unit), dated 25 July 2011 for cocaine.

8.  Tennessee Department of Children’s Services, Drug Screen Consent /Refusal and Results, dated 14 July 2011 which shows the applicant tested positive for cocaine. 

9.  State of Tennessee, Juvenile Court of Montgomery County, Department of Children’s Services, dated 18 July 2011 indicated the applicant neglected his children nutritionally and exposed them to drugs.

10.  Tennessee Department of Children’s Services, Immediate Protection Agreement, dated   14 July 2011 revealed the applicant’s children were removed from their home.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a handwritten self authored statement (three pages), a handwritten support statement, CIB Orders 142-008, DA Form 638 (Recommendation for Award), and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with his 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, and the application he submitted with, 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 two Articles 15, a CID Report, nine negative counseling statements, a positive urinalysis report, three sworn statements, and two State of Tennessee, Department of Children’s Services documents.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends he served three years of his three year contract and was deployed for a year.  The evidence of record shows he served 2 years, 11 months, 14 days.  However, this service was determined not to be sufficiently mitigating to overcome the reason for discharge and the characterization of service granted. 

5.  The applicant further contends no one prepared him for the transfer from air assault infantry to diaper duty.  The record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

6.  The applicant also contends he was unable to function mentally and made bad decisions; he wanted to feel something and started using drugs.  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.  

7.  The applicant additionally contends he self referred to rehabilitation; he did not have a drug problem but had emotional issues.  The applicant bears the burden of presenting substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he self referred to ASAP or he had emotional issues.
8.  Furthermore, the applicant contends after he completed inpatient rehabilitation, he returned to his unit, Soldiers that deployed with him understood his situation; the new chain of command felt he was an embarrassment to the unit and wasted taxpayer’s money.  Evidence of record shows the applicant relapsed two days after completing a 28 day rehabilitation program.  

9.  Moreover, 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.

10.  The applicant desires to serve his country again.  Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

11.  The records show the proper discharge and separation authority procedures were followed in this case.  

12.  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:  4 December 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)		AR20130008677



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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