IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 August 2013

      CASE NUMBER:  	AR20130010474
___________________________________________________________________________

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 that 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.  

2.  The applicant states, in effect, that after returning from his deployment, he had adjustment issues and developed a drug problem, failed a urinalysis and was discharged from the Army. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 June 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			5 October 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4        
e. Unit of assignment:			HHT, 2d Squadron, 2d Cav Rgt, Vilseck, Germany
f. Current Enlistment Date/Term:	5 March 2009, 2 years and 18 weeks								ERB shows ETS of 15 November 2013, contract NIF
g. Current Enlistment Service:	3 years, 6 months, 25 days
h. Total Service:			3 years, 6 months, 25 days
i. Time Lost:				6 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	13F10, Fire Support Specialist
m. GT Score:				104
n. Education:				HS Graduate
o. Overseas Service:			SWA, Germany
p. Combat Service:			Afghanistan (20100213-20110217)
q. Decorations/Awards:		ARCOM, AAM, AGCM, NDSM, ACM-CS, GWOTSM, 						ASR, OSR, CAB
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 5 March 2009, for a period of 2 years and 18 weeks.  He was 19 years old at the time of entry and was a high school graduate.  He was serving at Vilseck, Germany when his discharge was initiated.  The ERB contained in the record shows the applicant had an Expiration Term of Service (ETS) of 15 November 2013.  The reenlist-ment contract or extension documentation is not contained in the AMHRR.  The service record also shows the applicant received several awards including an ARCOM, AAM, AGCM and a CAB.  He served a one year combat tour in Afghanistan. 

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows that on 4 September 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, for misconduct-abuse of illegal drugs, specifically for wrongfully using marijuana (120310-120410).

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 6 September 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action 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 of the separation with a general, under honorable conditions discharge.  

4.  On 13 September 2012, 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 from the Army on 5 October 2012, for misconduct (drug abuse), under the provisions of AR 635-200, paragraph 14-12c(2), with an SPD Code of JKK, and an RE code of 4.

6.  The service record shows a period of time lost for 6 days, AWOL (120919-120924); the mode of return is unknown.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Field Grade Article 15 imposed on 21 June 2012, for wrongfully using marijuana (120410); his punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $745.00 per month for two months, 45 days of extra duty and restriction.

2.  Summarized Article 15 imposed on 5 March 2012, for dereliction of duty (120101).  His 
Punishment consisted of 7 days of extra duty and restriction.

3.  Five negative counseling’s dated between 1 August 2011 and 25 July 2012, for offenses related to being intoxicated, AWOL, wrongfully using an illegal drug, positive urinalysis, leaving his room unsecure, and failure to report on time.

4.  The record also contains the results of a urinalysis coded as IR (Inspection Random), dated      10 April 2012, that was positive for marijuana.
5.  Medical Evaluation 59 to 61 of 72, mentions Traumatic Brain Injury.

6.  Additional Counsel letter, document 71-72 of 72, 2 pages.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided an online application.

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 service record and the issue 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 service below that meriting an honorable discharge.  His record of service was marred by 2 Articles 15 and several negative counseling statements for violations of the Uniform Code of Military Justice.

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 after returning from a combat deployment he developed some adjustment issues and turned to drugs to alleviate his problems.  The record shows the applicant was being treated for TBI and alcohol dependence; in fact, a Mental Status Evaluation indicates he underwent a mental status evaluation which shows he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that although he was suffering from TBI and alcohol dependence, 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.  

5.  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.  

6.  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:  23 August 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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20130010474

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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