IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 March 2014

      CASE NUMBER:  	AR20130015509
___________________________________________________________________________

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 to be 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 under other than honorable conditions discharge to honorable.

2.  The applicant states, in effect, he experienced trauma while deployed to Iraq that affected him deeply and he did not know how to internalize what happened to him.  He contends he requested assistance through the military, however, drug intervention was recommended.  He believed placing a band-aid on his state of mind was not beneficial to his well-being because he needed one on one therapy and counseling. He states because of the constant stress and turmoil and he began self-medicating, drinking in access, and having suicidal thoughts and actions.  He contends his youth and vulnerability played a part in his actions and was based on a small segment of his years in the military.  He contends he was unjustly evaluated and requests his discharge be upgraded to honorable conditions and his veteran benefits be restored. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			19 August 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				29 August 2007
d. Reason/Authority/SPD/RE Code:		Misconduct (Drug Abuse), AR 635-200, 
Chapter 14-12c(2), JKK, RE-4
e. Unit of assignment:				G Company, 3-320th Field Artillery Regiment,
Fort Campbell, KY
f. Current Enlistment Date/Term:		28 September 2005/6 years
g. Current Enlistment Service:		1 year, 11 months, 2 days
h. Total Service:				4 years, 10 months, 11 days
i. Time Lost:					39 days
j. Previous Discharges:			USAR, 021019-021106, NA
IADT, 021107-030328, HD
USAR, 030329-031229, HD
RA, 031230-050927, HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		92A10, Automated Logistical Specialist,
31B10, Military Police
m. GT Score:					115
n. Education:					GED
o. Overseas Service:				SWA
p. Combat Service:				Iraq, (050918-060922)
q. Decorations/Awards:			ARCOM, NDSM, GWOTSM, ICM, ASR, OSR,
CAB
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the US Army Reserve (USAR) on 19 October 2002 for a period of 8 years.  On 30 December 2003, he enlisted into the Regular Army and reenlisted on 28 September 2005 for a period of 6 years.  He was 22 years old at the time of his reenlistment and held the Military Occupational Specialty of 92A, Automated Logistical Specialist.  He served in Iraq and earned an ARCOM and a CAB.  He completed 4 years, 10 months, 11 days, of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 11 July 2007, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c(2), misconduct (drug abuse). Specifically for:

     a.  being absent without leave (AWOL) x 2 (070309-070313 and 070417-070522).

     b.  wrongful use of marijuana.

     c.  being disrespectful to a NCO.

     d.  failing to go to his appointed place of duty x 3 (070131, 070307, 070308).

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

3.  On 24 May 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 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 commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  The available record is void of the specific date the separation authority waived further rehabilitation efforts and directed the applicant’s discharge.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), that was authenticated by the applicant’s signature.

5.  The DD Form 214 reflects the applicant was separated on 29 August 2007, under Army Regulation 635-200, Chapter 14-12c(2), 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 during the period 9 March 2007 through 
13 March 2007 and 17 April 2007 through 21 May 2007.  His mode of return is unknown.
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There are two positive urinalysis reports contained in the record:

      a.  IO, Inspection Other, 15 March 2007, THC 

      b.  RO, Rehabilitation Testing, 29 January 2007, THC/COC

2.  DD Form 2329 (Record of Trial by Summary Court-Martial), dated 7 June 2007, shows the applicant participated in proceedings where he pleaded and was found guilty of being AWOL from 9 March 2007 until 13 March 2007, and from 17 April 2007 until 22 May 2007; for failing to go to his appointed place of duty on 31 January 2007 until 8 March 2007, and on 
7 March 2007; for being disrespectful in deportment and language toward an NCO x 2 (070224 and 070314); and, for wrongful use of marijuana.  The punishment consisted of reduction to the pay grade of E-1 and forfeiture of $867 pay per month for one month.  On 13 June 2007, the punishment was approved by the convening authority.

3.  DA Form 458 (Charge Sheet), dated 12 April 2007, reflects the applicant was charged with the following:

     a.  Charge I, violation of Article 86, UCMJ, with two specifications of failing to go at the time prescribed to his appointed place of duty (070131, 070308 and 070307), and for being AWOL from 9 March 2007 until 13 March 2007.

     b.  Charge II, violation of Article 91, UCMJ, with two specifications of being disrespectful in deportment and language towards an NCO x 2 (070224 and 070314).

     c.  Charge III, violation of Article 112a, UCMJ, for wrongfully using marijuana.
      
4.  Seven negative counseling statements dated between 29 January 2007 and 17 July 2007, for debt counseling, wrongful use of cocaine and marijuana, failure to report x 2 (070131 and 070313), being AWOL x 2 (070313 and 070314), insubordinate conduct towards a NCO x 2 (070305 and 070314), and disobeying a commissioned officer.
      
5.  MEDCOM Form 699-R (Mental Status Evaluation), dated 19 June 2007, reflects the applicant had a clear thought process and was mentally responsible.

6.  A Offer to Plead Guilty, dated 24 May 2007, indicates the applicant agreed to a guilty plea  and be separated from the Army pursuant to AR 635-200, Chapter 14-12c(2), for commission of a serious offense.  The applicant’s guilty plea was contingent upon his charges being referred to a summary court-martial and no additional charges be preferred or any other UCMJ actions be taken against him.




7.  DA Form 458, dated 22 May 2007, reflects the applicant was charged with being AWOL from 17 April 2007 until 22 May 2007.

8.  A memorandum, dated 26 March 2007, indicates the applicant tested positive for THC on 15 March 2007.  

9.  A memorandum, dated 29 January 2007, indicates the commander directed urinalysis testing of the applicant for his failure to report to corrective training and his admittance to using marijuana and cocaine.

10.  A memorandum, dated 9 April 2007, indicates the applicant had three positive test results for marijuana metabolites on 20 March 2007, and 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid on 21 March 2007.

11.  A memorandum, dated 9 April 2007, indicates the applicant had six positive test results for cocaine metabolites on 5 February 2007, and, for benzoylecgonine on 6 February 2007.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and self-authored statement, dated 25 July 2013; two DD Forms 214; and a honorable discharge certificate, dated 29 December 2003.

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his 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 an honorable discharge.  The applicant’s record of service was marred by a trial by summary court-martial, two positive urinalysis tests, and seven 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 was young and vulnerable.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge.

5.  The applicant contends he requested assistance from his chain of command.  Based on the applicant’s statement, the command attempted to assist the applicant in performing and conducting himself to Army standards by recommending assistance through drug intervention, however, he believed that form of assistance was not beneficial to his well-being and based on the record of evidence the applicant failed to respond appropriately to these efforts.  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.

6.  The applicant contends he was unjustly evaluated.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

7.  The applicant requests his veteran’s benefits.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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.

8.  The applicant’s service record contains a DD Form 2624 (Specimen Custody Document for Drug Testing) that shows the urinalysis test was coded RO which indicates "Rehabilitation Testing.”  The Limited Use Policy applies to this test basis, per AR 600-85.  However, the evidence of record contains a counseling statement and memorandum from the commander, dated 29 January 2007, that indicates the commander had probable cause through the admission of the applicant that he had wrongfully used cocaine and marijuana. This would have given the unit commander probable cause to direct the urinalysis.  

9.  In view of the aforementioned, it appears the RO code used on the DD Form 2624 was in all likelihood incorrect and should have been coded PO for “Probable Cause” instead of RO for “Rehabilitation Testing.”  If this was in fact a harmless error, then the rights of the applicant were not prejudiced by the error on file in this case.  The evidence in the record did not create a substantial doubt that the discharge would have been any different if the error had not been made.

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

11.  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:  Personal Appearance     Date:  11 March 2014     Location:  Washington, DC

Did the Applicant Testify?  Yes

Counsel:  None

Witnesses/Observers:  Yes - Father



DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or contentions.

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

Board Vote:
Character Change:  2	No Change:  3
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)		AR20130015509



Page 8 of 8 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1