IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 December 2013

      CASE NUMBER:  	AR20130009820
___________________________________________________________________________

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 and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, that he was awarded a Purple Heart and the Army Commendation Medal with Valor for the traumatic and life-threatening events he faced in Iraq. These events caused him to suffer from severe PTSD; an ongoing price he pays for the sacrifices he made for his country.  His drug use after exposure to combat trauma was due to his uncontrolled PTSD symptoms, as confirmed by his medical records and the medical evaluation performed by Dr. A.  He has been awarded service-connected disability benefits based on his combat-related PTSD.  He served honorably, and his PTSD should be considered in mitigation of his drug use.  Based on these facts, the applicant requests that his PTSD diagnosis be considered as a mitigating factor for his misconduct and that his discharge be upgraded to honorable.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			22 July 2007
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200								Chapter 14, paragraph 14-12c(2), JKQ, RE-4
e. Unit of assignment:			A Co, 3rd Bn, 8th Cav, Fort Hood, TX
f. Current Enlistment Date/Term:	1 October 2003, 3 years (The applicant was retained 						in service 387 days for the convenience of the 							government per 10 USC 12305) 
g. Current Enlistment Service:	4 years, 0 months, 22 days
h. Total Service:			4 years, 0 months, 22 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman 
m. GT Score:				90
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (030301-040301 and 061001)
q. Decorations/Awards:		PH, ARCOM-w/V Device, ARCOM, ARCOM, NDSM 						GWOTEM, GWOTSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 1 October 2003, for a period of 3 years.  He was 17 years old at the time of entry and a high school graduate.  His record indicates he achieved the rank of E-4; and received several awards to include the PH, ARCOM-w/V Device, and the ARCOM.  He was serving at Fort Hood, TX when his separation was initiated.  He completed  4 years and 27 days of active military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 7 September 2007, 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 cocaine on 5 September 2006 and 5 July 2007.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 19 September 2007, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 3 October 2007, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provision of Chapter 14, paragraph14-12c, AR 635-200, for misconduct-abuse of illegal drugs.

5.  The applicant was discharged from the Army on 22 October 2007, 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. 

6.  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 a positive urinalysis report contained in the record coded; IU (Inspection Unit),       5 September 2006, Cocaine.

2.  There is a positive urinalysis report contained in the record coded; IU (Inspection Unit),       5 July 2007, Cocaine.

3.  Article 15, imposed on 22 November 2006, for the wrongful use of cocaine between (060829 and 060905).  The punishment consisted of reduction to the grade of E-1, forfeiture of $636.00 pay per month for two months, extra duty and restriction for 45 days (FG).

4.  Report of Mental Status Evaluation, dated 30 July 2007, which indicates the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and that the applicant was psychiatrically cleared for administrative proceedings.

5.  Two negative counseling statements dated between 14 September 2006 and 17 July 2007, for testing positive on a unit urinalysis test on 5 September 2006 and 5 July 2007.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a declaration of the applicant, financial liability investigation of property loss, development or counseling form, results report, notification of separation, mental status evaluation, report of medical examination, VA Contract Medical Examination, VA Ratings Decision, letters from the program manager at Hollywood Veteran Center and the Greater LA Healthcare System.

POST-SERVICE ACTIVITY: 

None were 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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to his narrative reason for separation 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 an Article 15 for violation of the Uniform Code of Military Justice for testing positive for cocaine and two negative counseling statements for testing positive for cocaine on 5 September 2006 and 5 July 2007.

3.  Furthermore, about the applicant's request to change his narrative reason for separation.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), for drug offenses.  The regulation further stipulates that no deviation is authorized.  

4.  The applicant’s service accomplishments to include his two tours of combat and the quality of his service prior to the incident 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 two incidents 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 contends he used drugs to cope with combat-related PTSD symptoms.  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.  Furthermore, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

6.  The Board acknowledges the Report of Medical Assessment, dated 13 August 2007, signed by M.G.C., Physician Assistant, indicating in the block 20 "Health Care Provider Comments" the applicant's complaints of PTSD, Aux/Depression Memory and others.  However, the document does not indicate the applicant suffered from PTSD.  

7.  The Board also acknowledges the independent documents submitted by the applicant from the Veterans Administration showing the applicant has been diagnosed with PTSD as a result of his combat service and is receiving service connected disability.  The service record contains no evidence of Post-Traumatic Stress Disorder diagnosis.  The record shows that on 30 July 2007, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was psychiatrically cleared for administrative proceedings.  

8.  Further, the fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing.  The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.  Additionally, there are many Soldiers with the same condition that completed their service successfully.

9.  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.  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: 2 December 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

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)		AR20130009820



Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1