IN THE CASE OF:
BOARD DATE: 25 October 2013
CASE NUMBER: AR20130013898
___________________________________________________________________________
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 APPLICANTS 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 he was rated as 100% service connected disabled by the VA for Post Traumatic Stress Disorder (PTSD). He believes that the problems he had while serving in the U.S. Army were largely because of PTSD and Traumatic Brian Injury (TBI).
DISCHARGE UNDER REVIEW INFORMATION:
a. Application Receipt Date: 29 July 2013
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 8 May 2009
d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, 14-12c(2) JKK, RE-4
e. Unit of assignment: B Co, 2-327 Inf Reg, Ft. Campbell, KY
f. Current Enlistment Date/Term: 16 July 2008, 4 years
g. Current Enlistment Service: 0 years, 9 months, 23 days
h. Total Service: 2 years, 9 months, 29 days
i. Time Lost: 2 days
j. Previous Discharges: RA/060707-080715/HD
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 11B10, Infantryman
m. GT Score: 96
n. Education: HS Graduate
o. Overseas Service: SWA,
p. Combat Service: Iraq (070920-081122)
q. Decorations/Awards: ARCOM-2, NDSM, GWOTSM, ICM-CS,ASR, OSR CIB
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 7 July 2006 for a period of 3 years and 19 weeks. He was 24 years old at the time of entry and a high school graduate. He served in Iraq and Ft. Campbell, KY. He earned two ARCOMs, NDSM, GWOTSM, CIB and completed
2 years, 9 months, and 29 days of active duty service. He served a fourteen month combat tour in Iraq.
SEPARATION FACTS AND CIRCUMSTANCES:
1. The evidence shows that on 21 April 2009, 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 and cocaine.
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 23 April 2009, 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 30 April 2009, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions.
5. The applicant was discharged from the Army on 8 May 2009, 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 2 days, AWOL (090112-090113) and (090507-090508); he surrendered and returned to military control. .
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:
1. There is one positive urinalysis reports contained in the record
IO, Inspection Other, 15 January 2009, cocaine and marijuana
2. Article 15, dated 15 August 2007, wrongfully using marijuana (070512); wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of duties (22 April 2007); punishment consisted of reduction to E-1, forfeiture of $636.00 for two months, restriction for 45 days, extra duty for 45 days (FG).
3. Article 15, dated 9 March 2009, AWOL (090112-090113); wrongful use of marijuana (081216-090115); wrongful use of cocaine (090107-090114); punishment consisted of reduction to E-1, forfeiture of $699.00 for two months, restriction for 45 days, and extra duty for 45 days (FG).
4. Nine negative counseling statements dated between 2 January 2009 and 10 April 2009, for several violations of FTR, AWOL, restriction violations, drunk on duty, disobeying a lawful order, driving on an expired drivers license, lying to an NCO, and disrespect.
EVIDENCE SUBMITTED BY THE APPLICANT:
The applicant provided a DD Form 293, dated 23 July 2013; four charter statements of support, and a copy of a certificate of completion from an addition recovery intensive outpatient treatment program, dated 9 August 2012.
POST-SERVICE ACTIVITY:
None 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 members 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND RECOMMENDATION:
1. The applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants 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 applicants 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 Article 15s 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 applicants service mitigated the misconduct or poor duty performance.
4. The applicant contends the Veterans Administration has granted him a service connected disability for Post-Traumatic Stress Disorder (PTSD) and that the problems he had while on active duty were because of the 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 1 April 2009, 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. 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 applicants 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: 25 October 2013 Location: Washington, DC
Did the Applicant Testify? No
Counsel: None
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: No Change
Change RE Code to: No Change
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) AR20130013898
Page 2 of 6 pages
ARMY DISCHARGE REVIEW BOARD (ADRB)
CASE REPORT AND DIRECTIVE
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