IN THE CASE OF:  	Mr. 

      BOARD DATE:  	18 December 2013

      CASE NUMBER:  	AR20130015691
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board determined the discharge is now inequitable.  The Board found the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding his discharge (i.e., the doctor’s confirmation that the medications were legitimate and the cause of the positive urinalysis; which was the reason for the applicant’s discharge, abuse of illegal drugs), mitigated the discrediting entry in his service record.  

2.  Accordingly, the Board voted to grant full relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 14, Paragraph 14-1, AR 135-178.  This action entails a restoration of grade to SGT/E-5.  




      
      
      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 and a change to the narrative reason for separation.

2.  He states, in effect, he was separated for illegal prescription drug use and he had a prescription for the drug found in his urinalysis sample.  JAG was not able to contact him, because the 196th Transportation Unit provided them with inaccurate information.  At the time, he was in Philadelphia with a program for disabled veterans.  His commander had his most current contact information, because she had spoken to him about making up his battle assemblies.  She had also spoken with the NCOIC of the unit where he was making up his battle assemblies.  When he found out he was separated, he investigated the issue and spoke with the JAG officer in charge of his file.  He quickly sent her his prescription history to get reviewed.  A few weeks after, he called the 196th Commander and she advised him that the doctor had come up with a new decision (The prescription drugs were legit).  All he wants is to get reinstated into the Army Reserves and get his stripes back.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		23 August 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			22 January 2013
d. Reason/Authority/SPD/RE:		Misconduct (Abuse of Illegal Drugs), AR 135-178, 						Chapter 12, paragraph 12-1d
e. Unit of assignment:			196th Transportation Company, Orlando, FL
f. Current Enlistment Date/Term:	16 June 2009, 6 years
g. Current Enlistment Service:	3 years, 7 months, 7 days 
h. Total Service:			10 years, 7 months, 16 days
i. Lost time:				None
j. Previous Discharges:		USAR (020607-090615)/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	88M20, Motor Transport Operator
m. GT Score:				102
n. Education:				14 Years
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (030703-040409)
q. Decorations/Awards:		ARCOM, AAM-3, GWOTEM, GWOTSM, AFRM-						W/”M” DEV, NPDR-2, CAB
r. Administrative Separation Board: 	NIF
s. Performance Ratings:		Yes
t. Counseling Statements:		No
u. Prior Board Review:			No




SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the US Army Reserve on 7 June 2002, for a period of 8 years.  He was 25 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 88M20, Motor Transport Operator.  He reenlisted on 16 June 2009, for a period of 6 years and was 32 years old at the time.  His record also shows he served a combat tour; earned several awards including an ARCOM, AAM-3, which were extracted from the applicant’s Wall Street Warfighters Foundation biography and a CAB.  He achieved the rank of SGT/E-5 and was serving in Orlando, FL when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 27 September 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, paragraph 12-1d, AR 135-178, by reason of misconduct-abuse of illegal drugs.

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

3.  On 27 September 2012, the unit commander also suspended the separation action for 45 days to afford the applicant the opportunity to consult with legal counsel and exercise his legal rights; and within 30 calendar days after he receives this memorandum, unless he requested and received an extension.  Failure to respond within 30 calendar days of the date of his receipt of this memorandum would constitute a waiver of his rights.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate and senior commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 29 December 2012, 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’s service record does not contain any evidence of unauthorized absences, time lost or actions under the Uniform Code of Military Justice (UCMJ).

6.  The applicant was discharged from the Army on 22 January 2013, with a characterization of service of under other than honorable conditions under the provisions of Chapter 12, paragraph 12-1d, AR 135-178, for misconduct (abuse of illegal drugs). 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains four successful NCOERs covering the periods from 1 August 2007 through 31 July 2012.

2.  The record of evidence also contains a positive urinalysis report coded IU (Inspection Unit), dated 15 April 2012 for d-amphetamine.

3.  Letter, Family Care Partners, dated 24 May 2012 which indicated the applicant was being treated with pain medication since 11 February 2011.

4.  My Healthevet, a list of historical medications, dated 24 May 2012.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, list of prescription medications, Family Care Partners, Family Care Center, medication list, Authorization for release of medical information, applicant’s letter to US Congressman, two Letters, Acting Chief, Congressional and Special Actions, Control Sheet from SFMR-RBX-A, FOUO Congressional, HQDA OCLL Mailbox Congressional Inquiries e-mail (three pages), Wall Street Warfighters Foundation biography of the applicant (three pages), Functional Capacity Certificate Form 507 (FCC 507), (two pages), doctor’s paperwork, and a Letter, Chief, Case Management Division.

POST-SERVICE ACTIVITY:

The applicant did not provide any with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve.  Chapter 12 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  

2.  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.   

3.  The narrative reason for enlisted Soldiers who are discharged under the provisions of Army Regulation 135-178, Chapter 12, paragraph 12-1d is misconduct (abuse of illegal drugs).

DISCUSSION AND RECOMMENDATION:

1.  After a careful review of the applicant’s military records for the period of enlistment under review, the issues and documents submitted with the application, it appears that the discharge is now inequitable based on his post-service conduct which provides the basis for a more thorough understanding of his performance during the period of service under review.

2.  The record supports a conclusion that the applicant’s discharge is now inequitable based on the following factors:

     a.  The overall length and quality of the applicant's service, served for over ten and a half years, earned an honorable discharge for a prior enlistment in the Reserve.

     b.  Post service accomplishments as a member of the Wall Street Warfighters Foundation.

     c.  A combat tour in Iraq 

     d.  Four successful NCOERs during the period of service under review, all reflect a rater’s assessment of fully capable with a senior rater’s assessment of his performance and potential as successful/2 and superior/2 respectively.

     e.  The evidence of record shows at the time the applicant tested positive for d-amphetamine, he was taking prescribed adderall and the prescription was last filled on 23 March 2012.  A statement from Dr. dated 24 May 2012, indicated the applicant was being treated with pain medication and had been since 11 February 2011.

     f.  A list of the applicant’s medications indicated he was prescribed adderall-amphet/asp/amphet/d-amphet numerous times and his positive urinalysis could have resulted from prescription medication.

3.  The record of evidence indicated the applicant stated he had been away since September 2012 in Philadelphia for a program to help disabled veterans transition in the financial service sector, the Wall Street Warfighters Foundation.  Before he left for this program he updated his contact information using the proper chain of command.  His unit commander had contacted him via email and phone also prior to him leaving.

4.  Further, his doctor’s review indicated he had been prescribed Adderall which has a history of resulting in a false positive for methamphetamine.   The JAG claimed that since they could not reach the applicant for verification, they proceeded with the discharge.  The JAG asked the applicant to forward the remaining prescriptions, which he did.  The applicant followed up with his unit commander several times for a status report on his case.  During one of these phone calls, the unit commander informed the applicant she had contacted JAG, who told her the doctor confirmed the medications were legitimate and the cause of the positive urinalysis. 

5.  In view of the foregoing, the discharge is now inequitable and recommended the Board grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority, under the provisions of Chapter 14, Paragraph 14-1, AR 135-178.  This action entails a restoration of grade to     SGT/E-5.



6.  Regarding the applicant’s contention of being reinstated in the Army Reserve, this contention does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review   Date:  18 December 2013   Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character  	Change:  4	No Change:  1
Reason	Change:  4	No Change:  1
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			No
Change Characterization to:  		Honorable
Change Reason to:  			Secretarial Authority, under the provisions of Chapter 14, Paragraph 14-1, AR 135-178
Change RE Code to:  			NA
Grade Restoration to:  			SGT/E-5
Change Authority for Separation:  	AR 135-178, Chapter 14, Paragraph 14-1, 
Other:  

TO:  ARBA Promulgation Team:  Arlington, VA                                       18 December 2013

The Army Discharge Review Board, under the provisions of Title 10, United States Code, Section 1553, in the case of the applicant named in page 1, directs the ARBA Promulgation Team, Arlington, VA to issue a new discharge order to the applicant to reflect the following changes:

              ( X )	Change characterization of service to Honorable.

              ( X ) Change narrative reason to Secretarial Authority.

              ( X )	Restoration of grade to SGT/E-5.

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)		AR20130015691



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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