IN THE CASE OF:  	

      BOARD DATE:  	1 November 2013

      CASE NUMBER:  	AR20130016077
___________________________________________________________________________

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 APPLICANT’S REQUEST AND STATEMENT:

1.  .  The applicant requests an upgrade of his discharge from general, under honorable conditions to honorable.

2.  He states, in effect, he was not afforded the opportunity to seek help, nor was he ever referred to ASAP for his substance abuse.  There was an injustice made by the command when he asked his company commander and first sergeant (1SG) for help and instead of giving him the help he asked for, they sent him to the National Training Center (NTC) and said that was his rehabilitation; and this was an act of carelessness by command, when all he wanted was some help.  He returned the year before from Iraq and was having issues dealing with his experiences in combat.  The VA diagnosed him with Post Traumatic Stress Disorder (PTSD) and stated his substance was to self medicate.  He has been successfully clean.  He believes if his company commander and 1SG would have listened to and cared for him, he would not have experienced all the prejudice he endured.  His discharge was inequitable because it was based on an isolated incident in 10 years, 7 months of service with no other adverse action.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 September 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			23 October 2006
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			F Co, 2-7th Cavalry Regiment, 4th Brigade Combat 						Team, Fort Bliss, TX
f. Current Enlistment Date/Term:	22 February 2005, 3 years
g. Current Enlistment Service:	1 year, 8 months, 2 days
h. Total Service:			10 years, 7 months, 3 days
i. Lost time:				None
j. Previous Discharges:		RA (960321-980916)/HD										RA (980917-000928)/HD										RA (000929-050221)/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	92G10, Food Service Operations
m. GT Score:				96
n. Education:				HS Graduate
o. Overseas Service:			Hawaii/Southwest Asia
p. Combat Service:			Kuwait/Iraq (040112-050112)
q. Decorations/Awards:		ARCOM-3, AAM-4, AGCM, NDSM, ICM, GWOTSM 						NPDR, ASR, OSR-2
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No
SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 21 March 1996, for a period of 3 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) 92G10, Food Service Operations.  On                                                                                                                                                      17 September 1998, he reenlisted for a period of 3 years; he was 27 years old at the time.  On 29 September 2000, he reenlisted for a period of 4 years; he was 29 years old at the time.  His last enlistment on 22 February 2005 was for a period of 3 years and he was 34 years old at the time.  His record also shows that he served a combat tour; earned several awards including an ARCOM-3, AAM-4, AGCM; he achieved the rank of SGT/E-5.  He was serving at Fort Bliss, TX when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 5 October 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct- commission of a serious offense for wrongfully using 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 5 October 2006, the applicant was afforded the opportunity to consult with legal counsel and waived his right to consult with counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board 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 with a general, under honorable conditions discharge.

4.  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’s record of service does not contain any documented evidence of unauthorized absences, lost time or negative counseling.

6.  The applicant was discharged from the Army on 23 October 2006, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 19 June 2006 for wrongfully using cocaine (060326-060330); the continuation sheet is not contained in the available record; the punishment consisted of reduction to E-4, forfeiture of $1009 pay x 2 months, restriction for 45 days (both suspended) and extra duty for 45 days, (FG).

2.  The record contains an NCOER covering the period March 2005 through July 2005, which the applicant was rated as “Fully Capable.”

3.  The record of evidence also contains a positive urinalysis report coded IU (Inspection Unit), dated 13 June 2006 for cocaine.

4.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 27 June 2006, which indicated the applicant was seen and evaluated as required for Chapter 14 separation and there was no evidence of any mental disease or defect, which would warrant a disposition through medical/psychiatric channels.  The applicant was cleared for any administrative action deemed appropriate by command.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293, a Department of Veteran Affairs, Request for Drug/Alcohol Residential Services, three pages, and a DD Form 214.  This included a 4 September 2009 document which states the applicant has "lifetime use of Cocaine/Crack Smoking is 17 years with first use at age 21, lifetime use of Cannabis Smoking is 25 years with first use at age 13. Of note this statement conflicts with his original enlistment contract,
executed on 10 October 1995, in which he stated "I experimented the use of marijuana 1 time and did not like the feeling of the drug and never used any drugs since."

POST-SERVICE ACTIVITY: 

The applicant stated he volunteers at the VA in Albuquerque and is a DAT Captain for the Red Cross in Las Cruces.

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 issues and documents 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 NCO.  The applicant, as a 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 an Article 15 and a positive urinalysis report.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.

4.  The applicant contends he was not afforded the opportunity to seek help, nor was he ever referred to ASAP for his substance abuse.  The record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

5.  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 further contends it was an injustice made by the command when he asked his company commander and first sergeant (1SG) for help and instead of giving him the help he asked for, they sent him to the National Training Center (NTC) and said that was his rehabilitation; this was an act of carelessness by command, when all he wanted was some help.  However, 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.  

7.  The applicant also contends he returned the year before from Iraq and was having issues dealing with his experiences in combat.  The record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

8.  The applicant additionally contends the VA diagnosed him with PTSD and stated his substance abuse was something he did to self medicate.  The applicant bears the burden of presenting substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that the VA diagnosed him with PTSD.

9.  Further, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.

10.  Moreover, the applicant contends he has been successfully clean.  The applicant is to be commended for his effort.  This contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. 

11.  Furthermore, the applicant contends he believes if his company commander and 1SG would have listened to and cared for him, he would not have experienced all the prejudice he endured.  The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

12.  The applicant finally contends his discharge was inequitable because it was based on an isolated incident in 10 years, 7 months of service with no other adverse action.  Although an isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization of service.

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

14.  The applicant requested that his application be reviewed under Title 10, Subtitle A, Chapter 79, 1553.  The Secretary concerned shall, after consulting the Secretary of Veterans Affairs, establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative.  A motion or request for review must be made within 15 years after the date of the discharge or dismissal.

15.  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:  1 November 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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
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)		AR20130016077



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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