IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 June 2014

      CASE NUMBER:  	AR20130015507
___________________________________________________________________________

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 notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it.


      
      
      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 general, under honorable conditions discharge to honorable.

2.  The applicant states, in effect, he was discharged from the military for a one-time drug offense.  He states he has been a good citizen and volunteers his services since being discharge, but has difficulty dealing with Post Traumatic Stress Disorder (PTSD) symptoms.  He contends that he starting experiencing symptoms after his return from a 15-month deployment, but did not inform his chain of command.  He is currently in in-patient treatment for PTSD and has been rated with a 30 percent service connected disability for PTSD.  He does not believe he should receive a less than honorable discharge for a first time drug offense.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			21 August 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				1 May 2009
d. Reason/Authority/SPD/RE Code:		Misconduct (Drug Abuse), AR 635-200, 
Chapter 14-12c(2), JKK, RE-4
e. Unit of assignment:				C Company, 2-327th Infantry Regiment, Fort
Campbell, KY
f. Current Enlistment Date/Term:		26 July 2006/3 years 16 weeks
g. Current Enlistment Service:		2 years, 9 months, 6 days
h. Total Service:				2 years, 9 months, 6 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					95
n. Education:					GED
o. Overseas Service:				SWA
p. Combat Service:				Iraq, 070920-081117
q. Decorations/Awards:			AAM, NDSM, GWOTSM, ICM-CS, ASR, OSR,
CIB
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				Yes


SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 26 July 2006 for a period of 3 years and 16 weeks.  He was 20 years old at the time of entry and had a General Equivalency Diploma (GED).  He served in Iraq and earned an AAM.  He completed 2 years, 9 months, 6 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Campbell, Kentucky.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 9 April 2009, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c(2), for misconduct (drug abuse).  Specifically for wrongfully using marijuana.

2.  Based on the above misconduct, the commander recommended a general, under honorable conditions discharge.

3.  On 9 April 2009, the applicant waived his right to consult with legal counsel, 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 a general, under honorable conditions discharge.  

4.  On 20 April 2008, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 1 May 2009, 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.  Article 15, dated 9 April 2009, for wrongful use of marijuana.  The punishment consisted of a reduction to the grade of E-1, forfeiture of $699 pay per month for two months (suspended), to be automatically remitted if not vacated before 17 June 2009, 45 days of extra duty and restriction (FG).

2.  A memorandum, dated 4 February 2009, reflects the applicant tested positive for THC on 12 January 2009.  The basis of the test was inspection random (IR).

3.  DA Form 3822-R (Report of Mental Status Evaluation), dated 27 March 2009, indicates the applicant was found to have a clear though process and was mentally responsible.  
4.  A counseling statement, dated 17 February 2009, for having an outstanding debt of $1,344.44 owed from an enlistment bonus.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 7 August 2013; an illegible DD Form 214; and, a printout from Our Fallen Soldier website on Sergeant First Class (SFC) Steven J. Chevalier, dated 7 August 2013.  On 7 March 2014, the applicant provided additional information that included a document from UConn School of Business EBV Program, a printout of VA disability rating showing the applicant received a 30 percent rating for Post Traumatic Stress Disorder (PTSD) effective 2 May 2009, a Certificate of Completion dated September 2013, a letter from the Delaware Division of Revenue, a DA Form 638 for Army Achievement Medal (AAM), approved 12 September 2008, a letter dated 20 January 2010 from the Department of Veteran Affairs.

POST-SERVICE ACTIVITY: 

The applicant states he volunteers his services.

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, compromised the trust and confidence placed in a non-commissioned officer.  The applicant, as an NCO, 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.  The applicant’s record of service was marred by a FG Article 15 for wrongful use of marijuana, in violation of Article 112a, and a negative counseling statement.

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 the incident that caused his discharge was a one-time offense.  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.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

5.  The applicant contends the Veterans Administration has granted him a service-connected disability for 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 27 March 2009, the applicant underwent a mental status evaluation which indicates he was mentally responsible and his thought content was clear.  It appears the applicant’s chain of command determined that 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.

6.  The applicant contends since leaving the Army he has been a good citizen and volunteers his services.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

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

8.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. 

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 notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it.























SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance   Date:  9 June 2014        Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel:  Yes [redacted] Mr. Ray Spencer, The American Legion, 1608 K Street N.W. Washington DC 20006

Witnesses/Observers:  None

Board Vote:
Character Change:  4	No Change:  1
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:	Honorable
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)		AR20130015507



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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