IN THE CASE OF:  Mr. 
      
      BOARD DATE:  	15 January 2014

      CASE NUMBER:  	AR20130009948
___________________________________________________________________________

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 to be 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 characterization of service  from general, under honorable conditions to fully honorable.

2.  He states, in effect, that he never wanted to be discharged in the first place and had requested to stay in but they still chaptered him out of the military.  He was never a problem Soldier and felt that the discharge he received was not just.  He also feels the way they handled his case was not done in a professional manner.   

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 May 2013
b. Discharge Received:		General, under honorable conditions 
c. Date of Discharge:			22 December 2009
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), Chapter 14-12c, JKQ,
RE-3
e. Unit of assignment:			66th Forward Support Company, 3rd Battalion, 
13th Field Artillery Regiment, Fort Sill, OK 
f. Current Enlistment Date/Term:	Reenl/8 December 2008, 5 years
g. Current Enlistment Service:	1 year, 15 days 
h. Total Service:			3 years, 4 months, 13 days
i. Time Lost:				None 
j. Previous Discharges:		RA (060810-081207),HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	88M10 Motor Transport Operator
m. GT Score:				92
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (080417-090711)
q. Decorations/Awards:		NDSM, GWOTSM, ICMw/CS, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			None
SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 10 August 2006, for a period of 3 years and 18 weeks and a high school graduate.  The applicant required a medical waiver at the time of enlistment which was approved on 15 July 2006.  He reenlisted on 8 December 2008, for 5 years and was 21 years old.  The record also shows he served a combat tour in Iraq.  At the time his discharge proceeding were initiated he was serving at Fort Sill, OK.  He served a total of 3 years, 4 months, and 13 days of military service.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 30 November 2009, 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 wrongfully using marijuana on or between (090802-090831).  

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

3.  On 8 December 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted 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 discharge action and recommended approval of a general, under honorable conditions discharge.  

4.  On 16 December 2009, the separation authority, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 

5.  The applicant was discharged on 22 December 2009, under Army Regulation 635-200, Chapter 14-12c (Serious Offense), with a general, under honorable conditions discharge, an SPD code of JKQ and an RE code of 3.

6.  The applicant’s record does not show any recorded unauthorized absences or time lost.   

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant's disciplinary record includes a Field Grade Article 15 imposed on 17 September 2009, for wrongfully using marijuana on or between (090802-090831).  The punishment consisted of reduction to the grade of Private E-1, forfeiture of $699.00 pay per month for two months, extra duty and restriction for 45 days, suspended, to be automatically remitted if not vacated before 16 November 2009.    

2.  The applicant received a negative counseling statement dated 1 February 2007, for wrongfully using a controlled substance (i.e., marijuana).

3.  A confirmation report of a biochemical test, dated 4 September 2009, which shows a positive urinalysis for marijuana (THC).  The report further shows the test was coded IO (Inspection Other) and the sample was collected on 31 August 2009.  

4.  A Mental Status Evaluation dated 12 November 2009 which shows the applicant was screened for PTSD and TBI, and the results were negative for both.  The applicant was cleared for any administrative action deemed appropriate by the command.  

EVIDENCE SUBMITTED BY THE APPLICANT 

Three character references letters with various dates.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 his military records, the issues and documents 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 serious misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  The applicant’s service was marred by a negative counseling statement which subsequently led to a field grade article 15 for wrongfully using marijuana.  

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 that he never wanted to be discharged in the first place and had requested to stay in but they still chaptered him out of the military.  He was never a problem Soldier and felt that the discharge he received was not just.  He also feels the way they handled his case was not done in a professional manner.  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.

5.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.  In fact, the applicant’s Article 15 and negative counseling statement justify a separation for misconduct serious offense.  The applicant’s statement alone do 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. 

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.  

7.  In view of the foregoing, 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:  15 January 2014     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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20130009948

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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