IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 December 2013

      CASE NUMBER:  	AR20130010183
___________________________________________________________________________

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 was unfairly treated by his unit.  He contends he was overworked by his unit while deployed to Afghanistan in 2011 and after being wounded by an RPG he was not allowed to fully heal from his injuries.  He also contends that after his return from deployment he had issues and when he tried to seek medical attention he was not allowed to attend his appointments due to training requirements.  He tried to enroll in the ASAP but his command wouldn't make time to enroll him.  Therefore, he believes he was unfairly treated by his unit.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			24 May 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				11 February 2013
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				HHC, 2nd Bn, 87th Inf Rgt, 3d BCT, Fort Drum
 						NY
f. Current Enlistment Date/Term:		21 March 2009, 2 years
g. Current Enlistment Service:		3 years, 10 months, 4 days
h. Total Service:				6 years, 6 months, 16 days
i. Time Lost:					17 days 
j. Previous Discharges:			RA-060706-090320/HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		13F10, Fire Support Specialist
m. GT Score:					115
n. Education:					HS Graduate
o. Overseas Service:				Southwest Asia, Germany
p. Combat Service:				Iraq (080401-090514) Afghanistan (110325-								120315)
q. Decorations/Awards:			PH, ARCOM-2, AAM, AGCM, ICM-w/2CS, 								ACM-w/2CS, NDSM, GWOTSM, ASR, OSR-2 								NATOMDL, CAB, MUC
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No

SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 6 July 2006, for a period of 3 years and           17 weeks.  He was 18 years old at the time of entry and a high school graduate.  On 21 March 2009, he reenlisted for a period of 2 years.  His record indicates he served two periods of combat and served in Germany; achieved the rank of SGT/E-5, and earned several awards to include the PH, two ARCOMs, an AAM, AGCM, CAB, and the MUC.  He completed a total of   6 years, 6 months, and 16 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on    22 October 2012, the applicant was charged with the following offenses:

a. going AWOL (120920-121007),

b. violating a lawful general order, to wit: paragraph 8(a), Fort Drum Installation Policy Memorandum 10-30, prohibition of certain unregulated intoxicants, dated 21 April 2010, by wrongfully using Spice, a chemical augmented herbal substance (120919),

c. violating a lawful general order, to wit: paragraph 4(e), Fort Drum Installation Policy Memorandum 10-30, prohibition of certain unregulated intoxicants, dated 21 April 2010, by wrongfully possessing a glass smoking pipe intended to facilitated the use of an unlawful substance (120919),

d. violating a lawful general order, to wit: paragraph 4(e), Fort Drum Installation Policy Memorandum 10-30, prohibition of certain unregulated intoxicants, dated 21 April 2010, by wrongfully possessing a bong intended to facilitate the use of an unlawful substance (120919),

e. wrongful use of marijuana, a schedule I controlled substance between (120701 and 120731), and

f. wrongful use of cocaine, a schedule II controlled substance between (120401 and 120430).

2.  On 15 November 2012, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant submitted a statement on his own behalf.  The unit commander and intermediate commanders recommended approval of an UOTHC discharge.  

3.  On 23 January 2013, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 11 February 2013, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 

5.  The applicant’s record of service indicates 17 days of time lost for being AWOL from         20 September 2012 until his return on 7 October 2012.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Three New York State Department of Motor Vehicle Traffic Tickets, dated 17 May 2012, indicating the applicant was charged with driving with .08 of 1% or more of ALC, driving while intoxicated and speeding.

2.  Two DA Form 4187-Es (Personnel Action), dated 21 September 2012 and 11 October 2012, changing the applicant's duty status from PDY to AWOL and AWOL to PDY.

3.  A CID Report of Investigation, dated 24 September 2012, that indicates the applicant was the subject of an investigation for wrongful possession of synthetic cannabinoids, wrongful possession of marijuana, wrongful use of synthetic cannabinoids, failure to obey a general order, and wrongful introduction of synthetic cannabinoids. 

4.  Three negative counseling statements dated between 17 May 2012 and 20 September 2012, for DWI (120517), failing to obey orders and regulation, being absence without leave, and wrongful use and possession of controlled substances.

5.  Two NCOERs covering the period of 1 December 2010 to 30 November 2012.  The applicant was rated overall as "Among the Best “and “Marginal."

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a Department of Veterans Affairs Statement in Support of Claim form, and a copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were provide with the application. 

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.
2.  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.

3.  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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization was carefully considered.  However, after examining the applicant’s record of service, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents several acts of significant achievement and valor; however, these accomplishments did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.

4.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings to include his two deployments and his over six years of service 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 incidents of misconduct.  

5.  Furthermore, 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, he knowingly risked a military career and diminished the quality of his service below that meriting an honorable or general, under honorable conditions discharge.  


6.  The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.

7.  The applicant contends he was unfairly treated by his unit and that he was not provided assistance in getting into the ASAP when requested.  However, 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.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unfairly treated by his unit or denied assistance in seeking help for his problems.  

8.  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.

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

10.  Therefore, the reason and 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:  11 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)		AR20130010183



Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1