IN THE CASE OF:	Mr. 

      BOARD DATE:  	10 February 2014

      CASE NUMBER:  	AR20130012911
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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 characterization from under other than  honorable conditions to general, under honorable conditions. 

2.  He states, in effect, that he spent 15 months in Iraq in direct combat serving and defending his country honorably.  He returned to Fort Bragg, NC and did not adjust well mentally after returning from Iraq.  He made several attempts to get the help he needed from his command without any results.  He was harassed continually from his leadership about his poor mental state.  He was unable to mentally handle what he had seen in Iraq for those 15 months and he is still unable to adjust.  He started to self medicate by using drugs and alcohol.  Drugs became his way of handling the pain from his experience in Iraq.  After his return from Iraq, his fiancé’ was killed in an automobile accident and he requested leave during her death, but was denied the leave because of his misconduct.  Out of desperation he went AWOL for five days preceding her death and voluntarily returned to his unit on his own.  His mother placed him in a rehabilitation center within 24 hours of his discharge from the US Army.  He was evaluated by a psychiatrist, who diagnosed him with Post Traumatic Stress Disorder as a result of his combat experience while serving in Iraq.  This will allow him to get VA Health Benefits so he can get the medical care he needs so desperately.  His service in the US Army was conducted with integrity, honor and with pride.  He feels the military should award him a discharge upgrade to general, under honorable conditions for his time served honorably.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 July 2013
b. Discharge Received:		Under Other Than Honorable Conditions 
c. Date of Discharge:			14 May 2008
d. Reason/Authority/SPD/RE:		Misconduct, (Drug Abuse), Chapter 14-12c(2),
AR 635-200, JKK, RE-4
e. Unit of assignment:			Bravo Company, 2nd Battalion, 505th Parachute
f. 					Infantry Regiment, 82nd Airborne Division,
Fort Bragg, NC,
g. Current Enlistment Date/Term:	5 January 2006, 5 years, 19 weeks
h. Current Enlistment Service:	2 years, 3 months, 10 days 
i. Total Service:			2 years, 3 months, 10 days
j. Time Lost:				30 days 
k. Previous Discharges:		None
l. Highest Grade Achieved:		E-3	
m. Military Occupational Specialty:	11B1P Infantryman
n. GT Score:				88
o. Education:				GED
p. Overseas Service:			Southwest Asia
q. Combat Service:			Iraq (060808-071026)
r. Decorations/Awards:		NDSM, GWOTSM, ICM, ASR, OSR, CIB
s. Administrative Separation Board: 	No
t. Performance Ratings:		None
u. Counseling Statements:		Yes	
v. Prior Board Review:			Yes/15 October 2010/Denied
SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 5 January 2006, for a period of 5 years and 19 weeks.  He was 18 years old at the time and had a GED.  He served a combat tour in Iraq and at the time the discharge proceedings were initiated he was serving at Fort Bragg, NC.  He completed 2 years, 3 months, and 10 days of active duty service.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 21 April 2008, 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, for wrongfully using cocaine on two separate occasions, wrongfully using marijuana, oxycodone and oxymorphone and going AWOL.  Also, he wrongfully consumed alcohol while under the age of 21, disobeyed a noncommissioned officer and made two false official statements to two noncommissioned officers.  

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

3.  On 21 April 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, and did not submit 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 separation action and recommended approval with an under other than honorable conditions discharge.  

4.  On 1 May 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

5.  The applicant was separated on 14 May 2008, under the provisions of Army Regulation 635-200, Chapter 14-12c (2), by reason of Misconduct (Drug Abuse), with an under other than honorable conditions discharge, an SPD code of JKK and an RE code of 4.

6.  The applicant’s record shows he was AWOL (080306-080310) for 5 days, the mode of return is unknown; and confined by the military authorities (080317-080410) for 25 days.  Total time lost was 30 days.  




EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice; on 16 April 2008, for wrongfully using marijuana, cocaine, oxycodone and oxymorphone between on or about (080218-080303).  His punishment consisted of forfeiture of pay in the amount of $673.00 pay per month for two months, extra duty and restriction for 45 days, (FG).

2.  A Field Grade Article 15 issued on 22 February 2008, for drinking while under the age of 21 (080105), and with intent to deceive provided a false statement to a 1SG (080214).  The punishment imposed consisted of a reduction to E-1, forfeiture of $673.00 pay per month for two months, 45 days of extra duty and restriction (FG).

3.  A Company Grade Article 15 issued on 4 August 2007, for disobeying a lawful order issued by an NCO (061112), with intent to deceive provided a false statement to two noncommissioned officers (070705-070713).  The punishment imposed consisted of a reduction to E-2, forfeiture of $340.00 pay per month for one month and 14 days of extra duty (CG) 

4.  A Summary Court-Martial issued on 17 March 2008, AWOL (080306-080310), violation of a general regulation (080306), wrongfully used cocaine (080114-080213), broke restriction (080306).  His punishment consisted of forfeiture of $898.00 pay per month for one month and confinement for 30 days. 

5.  Six negative counseling statements dated from 13 November 2006 through 12 February 2008, for underage drinking, reporting to duty with alcohol in his system, lying to a noncommissioned officer x 2, disobeying a lawful order from two noncommissioned officers, disrespecting a commissioned officer on two occasions, failing to report on two occasions, failing to comply with the visitation policy in the enlisted quarters and out of set limits without a pass. 

6.  A Mental Status Evaluation dated 19 February 2008, diagnosed the applicant with an occupational stressor; however, he was mentally responsible for his behavior and could distinguish right from wrong.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.  

7.  The record also contains the results of two positive urinalysis coded as PO (Probable Cause), dated 14 February 2008 and 3 March 2008.  The 14 February 2008 urinalysis was positive for cocaine and 3 March 2008, for cocaine, marijuana, oxycodone and oxymorphone.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 293, DD Form 214, a self-authored statement, a character reference letter, an Enlisted Record Brief (ERB), AMHRR documents, travel vouchers, documents from the Henry Ford Behavioral Health, certificate from the Nextcare Healthcare Training Institute, and a certificate from the Wayne County Community College.  

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 documents 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 a general or honorable discharge.  The applicant’s record of service was marred by 3 Articles 15 for multiple violations of the Uniform Code of Military Justice, a summary court-martial and six 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 spent 15 months in Iraq in direct combat serving and defending his country honorably.  He was harassed continually from his leadership about his poor mental state.  He was unable to mentally handle what he had seen in Iraq for those 15 months and he is still unable to adjust and he started to self medicate by using drugs and alcohol.  The applicant’s contentions were noted; however, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  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 he made several attempts to get the help he needed from his command without any results.  The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

6.  The applicant contends after his return from Iraq his fiancé’ was killed in an automobile accident and he requested leave during her death, but was denied the leave because of his misconduct.  Out of desperation he went AWOL for five days preceding her death and voluntarily returned to his unit on his own.  The record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

7.  The applicant contends he was evaluated by a psychiatrist, who diagnosed him with PTSD as a result of his combat experience while serving in Iraq.  This will allow him to get VA Health Benefits so he can get the medical care he needs so desperately.  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 19 February 2008, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  

8.  The applicant contends his service in the Army was conducted with integrity, honor and with pride.  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.

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

10.  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:  Appearance Hearing    Date:  10 February 2014	Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: None

Witnesses/Observers: NA

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Personal self-authored statement – 2 pages
	b.  Letter of reference SSR – MSgt, USAF – 1 page
	c.  Copy of DD Form 214 – 1 page

2.  The applicant presented no additional contentions

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character  	Change:  2	No Change:  3
Reason	Change:  2	No Change:  3
(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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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 20130012911

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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