IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 May 2014

      CASE NUMBER:  	AR20130014963
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, and considering the examiner’s 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 general, under honorable conditions to honorable.  

2.  The applicant states, in effect, that his discharge was inequitable because it was based on one isolated incident in 50 months of service with no other adverse actions.  Also numerous other Soldiers who he served with were not chaptered out for the same incident and were given a second chance.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		12 August 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			28 February 2011
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2) 						JKK, RE-4        
e. Unit of assignment:			Bravo Company, 1st Battalion, 508th Parachute 						Infantry Regiment, 4th Brigade Combat Team, 82nd 						Airborne Division, Fort Bragg, NC
f. Current Enlistment Date/Term:	24 January 2009, 3 years
g. Current Enlistment Service:	2 years,1 month, 4 days
h. Total Service:			4 years, 1 month, 20 days
i. Time Lost:				None
j. Previous Discharges:		RA (070111-090123), HD										(Concurrent Service)
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	11B1P, Infantryman
m. GT Score:				95
n. Education:				HS Graduate
o. Overseas Service:			SWA x 2
p. Combat Service:			Afghanistan (070625-080415 and 090819-100902)
q. Decorations/Awards:		ARCOM-3, AGCM, NDSM, ACM-2, GWOTSM, ASR 						OSR, NATO MDL
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 11 January 2007, for a period of 3 years and 19 weeks.  He was 21 years old at the time of entry and a high school graduate.  He reenlisted on 24 January 2009, for a period of three years.  He was stationed at Fort Bragg, NC, when his discharge was initiated.  He was awarded three ARCOMs, an AGCM, and served two combat tours in Afghanistan.    
SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 13 January 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense, specifically for at or near Muquor, Afghanistan, on divers occasions, wrongfully using hashish a Schedule I controlled substance while receiving special pay under 37 U.S.C. § 10.

2.  Based on the above misconduct, the commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 13 January 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated he would submit a statement in his own behalf (NIF).  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 a general, under honorable conditions discharge.  

4.  On 7 February 2011, 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 separated on 28 February 2011, under Army Regulation 635-200, Chapter 14-12c(2), with a general, under honorable conditions discharge, an SPD code of JKK, and an RE code of 4.               

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  FG Article 15, dated 7 September 2010, for at or near Muquor, Afghanistan, on divers occasions, wrongfully using hashish a Schedule I controlled substance while receiving special pay under 37 U.S.C. § 10.  The punishment imposed consisted of a reduction to E-1, forfeiture of $723.00 pay per month for two months, and 45 days restriction and extra duty.   

2.  The record also contains the results of a urinalysis coded as IU (Inspection Unit), dated      26 June 2010, that was positive for THC 44.

3.  Numerous sworn statements covering the period 21 June 2010 through 15 July 2010, referencing the applicant using hashish.   

4.  A negative counseling statement, dated 17 September 2010, notifying the applicant of intent to recommend discharge under Chapter 14-12c.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 293, DD Form 214, and two character reference letters.  

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 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.

ANALYST’S 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 (hashish), 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 an honorable discharge.

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 his discharge was inequitable because it was based upon one isolated incident in 50 months of service.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  

5.  The applicant contends that other Soldiers with similar offenses were not discharged or allowed to stay in the Army.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

6.  The third party statements provided with the application speak highly of the applicant’s performance.  They all recognize his good conduct while serving in and after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity.

7.  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.  

8.  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:  7 May 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:		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)		AR20130014963



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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