IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 June 2014

      CASE NUMBER:  	AR20130016682
___________________________________________________________________________

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 that his under other than honorable discharge to be upgraded to general, under honorable conditions.  

2.  The applicant states, in effect, that he was discharged for possession of a control substance which was later reduced to a Class A misdemeanor from a Class B felony.  This does not mean he refused responsibility and he is submitting documentation to show he participated in substance abuse rehabilitation.  He has been alcohol and drug free for almost six years and is currently working as a Registered Nurse in the state of New Mexico.  He will always regret his poor judgment while serving in the Army, but it was a wake-up call.  He now practices his profession as a civilian and continues to improve individual lives.  He would like to be able to work in the VA hospital and an upgrade of his discharge would allow him to be eligible for government related employment and pursue a master’s degree. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			9 September 2013
b. Discharge Received:			Under Other Than Honorable Conditions 
c. Date of Discharge:				16 March 2006				
d. Reason/Authority/SPD/RE Code:		Unacceptable Conduct, AR 600-8-24 								paragraph 4-2b, 4-24a(1), BNC, NA
e. Unit of assignment:				CO A, BAMC TRP CMD, FSH, TX 	
f. Current Entry Date/Term:			13 September 2002, 3 years 		
g. Current Term Net Active Service:		3 years, 6 months, 4 days	
h. Total Service:				9 years, 20 days
i. Time Lost:					None
j. Previous Discharges:			RA (970224-020912), HD										(Concurrent Service)
k. Highest Grade Achieved:			O-2
l. Branch:					66H, Medical Surgical Nurse
m. GT Score:					NA
n. Education:					College Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			ARCOM, AAM, AGCM, NDSM, GWOTSM 							NPDR, ASR
r. Administrative Separation Board: 		No  
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 24 February 1997.  After successfully attending Officer Candidate School, he was commissioned as a second lieutenant on 13 September 2002.  He was 39 years old at the time and a college graduate.  The applicant’s record shows he was awarded an ARCOM, and an AAM.  His Officer Record Brief indicates he had a on a 3-year obligation.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 2 November 2005, the applicant was notified of initiation of elimination proceedings under the provisions of AR 600-8-24, Chapter 4, paragraph 4-2(b)(5), because of his misconduct while under the influence of alcohol and his possession of an illegal narcotic and AR 600-8-24, paragraph 4-2(b)(8) because of his conduct unbecoming an officer.  The applicant’s conduct on or about 16 May 2005, resulted in the Austin Police Department arresting him for public intoxication and possession of an Illegal narcotic (cocaine).  Additionally, upon his arrest, he had more than six grams of cocaine in his possession.

2.  The applicant was directed to show cause for retention in the Army based on or about 16 May 2005, his conduct resulted in the Austin Police Department arresting him for Public Intoxication and Possession of an Illegal Narcotic (Cocaine).  Additionally, upon his arrest, he had more than six grams of cocaine in his possession.

3.  Based on the above offenses, the Commanding General (CG), U.S. Army Medical Department Center and School, Fort Sam Houston, TX, indicated he was recommending the applicant’s discharge from the Army with a characterization of service of under other than honorable conditions. 

4.  On 19 December 2005, the applicant consulted with legal counsel and voluntarily tendered his resignation from the Army in writing, under the provisions of Chapter 4, AR 600-8-24, in lieu of further elimination proceedings.  The applicant indicated he understood he could receive an HD or a GD as determined by HQDA.  He elected to waive his right to submit any matters in explanation, rebuttal, or defense concerning the allegations in his case.  However, his counsel provided a statement on the applicant’s behalf concerning the characterization of his discharge.

5.  On 12 January 2006, the acting CG, U.S. Army Medical Department Center and School, Fort Sam Houston, TX, considered the applicant’s additional matters and recommended separation from the US Army, with a characterization of service of under other than honorable conditions. 

6.  The Department of the Army Ad Hoc Review Board reviewed the resignation in lieu of elimination tendered by the applicant based on misconduct and moral or professional dereliction.

7.  On 1 March 2006, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 

8.  The applicant was discharged from the Army on 16 March 2006, with a characterization of service of under other than honorable conditions, under the provisions of AR 600-8-24, paragraph 4-2b, 4-24a(1), for unacceptable conduct.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Two successful DA Forms 1059 (Service School Academic Evaluation Report), dated 22 November 2002 (AMEDD Officer Basic Course), and 21 January 2005 (Critical Care Nursing Course).

2.  GOMOR, dated 30 September 2005, for wrongfully possessing an illegal narcotic and for public intoxication on 16 May 2005, in Austin Police.

3.  Three successful OERs covering the period 1 June 2003 through 21 January 2006.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, two DD Forms 214, discharge letter from the New Mexico Diversion Program, memorandum requesting to be release from the Peer Assistance Program, two character reference letters, ORB, and an outpatient certificate.

POST-SERVICE ACTIVITY: 

The applicant contends he is working as a registered nurse.  

REGULATORY AUTHORITY:

1.  Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers.  Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.

2.  AR 600-8-24, paragraph 1-22a, provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.

3.  A general under honorable conditions characterization of service will normally be issued to an officer when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer submits an unqualified resignation or a request for relief from active duty under circumstances involving misconduct which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate.

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, the documents and the issue 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 Army officers.  It brought discredit on the Army and was prejudicial to good order and discipline.  By the incidents of unacceptable conduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  

3.  The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance.  Further, the applicant’s record contains no evidence of arbitrary or capricious actions by the command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant contends his charge of possession of a control substance which was later reduced to a Class A misdemeanor.  He accepted responsibility and he is submitting documentation to show he participated in substance abuse rehabilitation.  He has been alcohol and drug free for almost six years and is currently working as a Registered Nurse in the state of New Mexico.  The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with 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.  

5.  In addition, the US Army does not have, nor has it ever had, a policy to upgrade a discharge based on time elapsed since the discharge.  Each case is decided on its own merits based on all factors contained in the official record or as submitted by the applicant.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.

6.  The applicant contends he would like to be able to work in the VA hospital and an upgrade of his discharge would allow him to be eligible for government related employment and pursue a master’s degree.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, 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.

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

8.  Therefore, the reason for discharge and 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:  25 June 2014        Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  None

Witnesses/Observers:  No

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)		AR20130016682



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1