IN THE CASE OF:  	Mr. 

      BOARD DATE:  	29 January 2014

      CASE NUMBER:  	AR20130010989
___________________________________________________________________________

Board Determination and Directed Action

1.  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.  

2.  However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27 contains the erroneous reentry code of 4.    

3.  In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations.  



      
      
      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 his under other than honorable conditions discharge be upgraded to general, under honorable conditions or to fully honorable.

2.  The applicant states, in effect, he did well in the Army and never was in trouble until after he was stationed in Korea.  He developed a drinking problem and never received any help from the Army.  He desperately needs the upgrade to enable him to support his three-year-old daughter.  He believes he should have had an option to receive treatment before his discharge.  Instead, after his confinement he was discharged.  He received treatment after his discharge and needs the upgrade to support his family through assistance from the VA.  He supported his country and now needs the upgrades so that he may go on with his life and be a strong American veteran.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		10 June 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			9 June 2008
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense),										AR 635-200, 14-12c, JKQ, RE-4	
e. Unit of assignment:			7 EN HQ, Fort Drum, NY
f. Current Enlistment Date/Term:	6 July 2006, 3 years, 20 weeks
g. Current Enlistment Service:	1 year, 10 months, 10 days
h. Total Service:			1 year, 10 months, 26 days
i. Time Lost:				24 days (080516-080609)
j. Previous Discharges:		USAR (060620-060705)
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92G10, Food Service Operations
m. GT Score:				106
n. Education:				NIF
o. Overseas Service:			Korea
p. Combat Service:			No
q. Decorations/Awards:		AAM, NDSM, KDSM
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
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             20 weeks.  He was 24 years old at the time of entry and a high school graduate.  He served in Korea and Fort Drum, NY.  He earned an AAM and the NDSM and completed 1 year,            10 months, and 10 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 29 May 2008, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, commission of a serious offense. Specifically for:

     a.  On or about 24 December 2007 and 24 January 2008, he wrongfully used marijuana and cocaine.
     b.  On or about 24 January 2008 and 11 February 2008, he wrongfully used cocaine.
     c.  On or about 26 January 2008, he behaved with disrespect toward Captain H.
     d.  Conviction by a Summary court martial for his misconduct.  

2.  Based on the above misconduct, the commander recommended an under other than honorable conditions discharge.

3.  On 14 May 2008, the applicant consulted with legal counsel and conditionally waived his right to an administrative separation board pursuant to the acceptance of an offer to plead guilty of the charges preferred against him in a summary court martial.

4.  On 29 May 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, for a second time, and did not submit a statement in his own 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 with an under other than honorable conditions discharge.  

5.  On 3 June 2008, the separation authority approved and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  He also directed the applicant to be reduced to the lowest enlisted grade.

6.  The applicant was separated on 9 June 2008, under Army Regulation 635-200, Chapter 14-12c, with an under other than honorable conditions discharge, an SPD code of JKQ, and an RE code of 4.               

7.  The applicant's record shows he was confined as a result of the punishment imposed by the summary court martial for the period 16 May 2008 - 9 June 2008. 


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There are two positive urinalysis reports contained in the record:
	
      PO, Probable Cause, 24 January 2008, cocaine and marijuana 
      IR, Inspection Random, 11 February 2008, cocaine

2.  Three negative counseling statements, all dated 25 January 2007 (sic-2008), for failure to report to work, substance abuse, and for driving while intoxicated.
      
3.  A Department of the Army Report of Result of Trial shows on 16 May 2008, the applicant pled guilty, in a summary court martial to the offenses listed below.  His was sentenced to a reduction to the grade of E-1, forfeiture of $898.00, and confinement for 30 days.

	On or about 24 December 2007, and on or about 24 January 2008 wrongfully use marijuana.
	On or about 24 December 2007, and on or about 24 January 2008 wrongfully use cocaine.
	On or about 24 December 2007, and on or about 11February 2008 wrongfully use cocaine.
	Behave himself with disrespect towards CPT H.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

None stated.  

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, 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 general or a fully honorable discharge.  The applicant’s record of service was marred by a sentence from a summary court martial and three negative counseling statements for failing to report to work, substance abuse and driving while intoxicated; all are 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 he developed a problem with alcohol and never received help from the Army.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance.

5.  The applicant contends that an upgrade of his discharge would allow him to receive support from the Department of Veterans Affairs.  However, eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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:  29 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:		Yes
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		3
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)		AR20130010989



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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