IN THE CASE OF:  	Mr. 

      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR20130009988
___________________________________________________________________________

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 under other than honorable conditions to honorable.

2.  The applicant states, in effect, that he suffers from PTSD which he believes he had since 2007 and was never provided with any medical assistance.  He contends he served three terms honorably for 10 plus years and made a difference in his country with a deployment.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 May 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			3 April 2013
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			372d Inland Cargo Transfer Company, 129th CSSB, 						101st SB, Fort Campbell, KY
f. Current Enlistment Date/Term:	5 August 2005, 6 years (There were no additional 						documents found in the record extending the 							applicant enlistment to meet his discharge date).
g. Current Enlistment Service:	7 years, 7 months, 29 days
h. Total Service:			10 years, 2 months, 21 days
i. Time Lost:				None
j. Previous Discharges:		RA-030113-050804/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	88H10, Cargo Specialist
m. GT Score:				89
n. Education:				HS Graduate
o. Overseas Service:			Korea, Germany, Southwest Asia 
p. Combat Service:			Afghanistan (050712-060711)
q. Decorations/Awards:		ARCOM, AAM-2, AGCM-3, ACM-w/2CS, NDSM, 						KDSM, GWOTSM, ASR, OSR
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No





SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 13 January 2003, for a period of 3 years.  He was 20 years old at the time of entry and a high school graduate.  He reenlisted on                   5 September 2005, for a period of 6 years.  His record indicates he served in Korea, Afghanistan, and Germany; achieved the rank of SGT/E-5; and earned several awards to include an ARCOM, two AAM's, and three AGCM's.  He was serving at Fort Campbell, KY when separation action was initiated against him.  He competed 10 years, 2 months, and      21 days of active duty service. 

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 11 December 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason misconduct-abuse of illegal drugs.  Specifically for the following offenses: 

a. wrongful use of marijuana x 2 between (120506 and 120605 and 120708 and 120807)
b. assault on Ms P.D. (120603)

2.  However, he stated the following conduct is included in the separation action pursuant to paragraph 1-15c, AR 635-200, and will only be considered on the issue of retention or separation and will not be considered on the issue of characterization of service IAW paragraph 3-8b, AR 635-200.

a. wrongful use of marijuana between (080301 and 080401)
b. violating a lawful general regulation by allowing an invalid license plate to be displayed on a privately owned vehicle (POV), wrongfully operating a POV without a USAREUR license, wrongfully operating a POV not registered with the registrar or other civilian or military authority in USAREUR, and wrongful operating a POV that was not covered by liability insurance in the minimum amount required by German Law, (030720)
c. operated a motor vehicle while under the influence of alcohol and caused injury to another person, operated a vehicle in a reckless manner and wrongfully left the scene of an accident (030720)

3.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

4.  On 17 December 2012, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and the applicant submitted a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  
5.  On 16 January 2013, the separation authority directed an administrative separation board be convened to determine whether the applicant should be separated from the Army.

6.  On 5 February 2013, the applicant was notified to appear before an administrative separation board and advised of his rights.  

7.  On 28 February 2013, 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.

8.  On 14 March 2013, 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.

9.  The applicant was discharged from the Army on 3 April 2013, with a characterization of service of under other than 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. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Incident Report, dated 3 June 2012, that indicates the applicant was the subject of an investigation for domestic violence w/simple assault and for violation conditions of release.

2.  There is a positive urinalysis report contained in the record coded; PO (Probable Cause),       5 June 2012, THC/marijuana.

3.  An Incident Report, dated 14 June 2012 that indicates the applicant was the subject of an investigation for violation conditions of release.

4.  Article 15, imposed on 9 July 2012, for the wrongful use of marijuana between (120506 and 120605).  The punishment consisted of reduction to the grade of E-3, forfeiture of $990.00 pay per month for two months (suspended), and extra duty for 30 days (FG).

5.  There is a positive urinalysis report contained in the record coded; IU (Inspection Unit),       7 August 2012, marijuana.

6.  Article 15, imposed on 26 October 2012, for the wrongful use of marijuana between (120708 and 120807).  The punishment consisted of reduction to the grade of E-1, forfeiture of $745.00 pay (suspended), and extra duty for 45 days (FG).

7.  A copy of the Administrative Separation Board documents, which recommended the applicant be separated with a characterization of service of under other than honorable conditions.

8.  Two NCO Evaluation Reports covering the periods of 1 April 2006 through 31 January 2008, which indicate an overall rating of "Fully Capable."

9.  Five negative counseling statements dated between 4 June 2012 and 19 March 2013, for violation of a no contact order, failing to contact his chain of command after being arrested, wrongful use and possession of controlled substances x 2, positive urinalysis for THC, and debt avoidance.

10.  Report of Mental Status Evaluation, dated 11 July 2012, which indicates the applicant was screened for PTSD and mild Traumatic Brain Injury with negative results.  The applicant was psychiatrically cleared for Chapter 14-12c consideration per his command.

11.  A copy of the applicant's Medical Evaluation Board (MEB) Proceedings, dated 4 January 2013, which indicated the applicant was referred for PTSD.

12.  A copy of the applicant's Informal Physical Evaluation Board (PEB) Proceedings, dated     8 February 2013, which indicates the applicant was fit for duty within the limitations of his profile.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and DD Form 149, a Memorandum for Record, dated 29 October 2012, from a licensed clinical psychologist, and a copy of his DD Form 214 for the period of service under review.

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.

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 document 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 an honorable discharge.  The applicant’s record of service was marred by two Articles 15, for violation of the Uniform Code of Military Justice, two positive drug tests, and several 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 that he had good service which included over ten years of honorable service and a deployment.  The applicant’s service accomplishments and the quality of his service prior to the incidents 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 repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

5.  The applicant contends he suffered from PTSD and never received any help.  The applicant’s service record contains documentation that supports a diagnosis of in service Post-Traumatic Stress Disorder (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 11 July 2012, the applicant underwent a mental status evaluation which indicates he was psychiatrically cleared for Chapter 14-12c consideration per his command.  It appears the applicant’s chain of command determined that although he was suffering from PTSD, 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.

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:  Records Review     Date:  13 November 2013     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130009988



Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1