IN THE CASE OF:	Mr. 

      BOARD DATE:	31 January 2014

      CASE NUMBER:	AR20130017518
___________________________________________________________________________

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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable.  

2.  The applicant’s statement authored by a U.S. District Judge, in pertinent part and in effect, provides that the applicant requests a relief in the form of a fully honorable discharge because it more accurately reflects the preponderance of his service.  As a good Soldier and being an above-average Soldier, the applicant excelled at every task, scoring 297 on his APFT, completing the Army Airborne School, receiving an assignment with 75th Ranger Regiment, graduating from the Ranger Indoctrination Program; serving in Iraq; and being promoted shortly after returning from Iraq—all while dealing with an undiagnosed bipolar and major depressive disorder (MDD) that worsened by January 2010, and sought treatment a month before the incident that led to his discharge.  The statement further provided a detail of the events and circumstances surrounding the applicant making a terrible decision taking an Adderall a friend gave him while traveling back to his unit following  block leave on a Sunday to make the Monday morning formation and when he was so compromised by his mounting bipolar and MDD symptoms, and being so aggrieved by his grandfather’s sudden passing.  Subsequently, the following Wednesday, the unit conducted a urinalysis drug screening that resulted in learning that he had tested positive for Adderall.  The statement also contends that on 11 May 2010, after being notified of his separation proceedings, the applicant had requested counsel for the proceedings, but it was never granted.  The statement further made reference to two other Soldiers’ cases, similar to the applicant’s case; wherein, in the past, the Board had granted an upgrade of their discharge.  The statement concluded that the applicant never denied making a mistake by taking an Adderall; he knew it was wrong at the time but had acted impulsively under the stress of the loss of a family member, and while struggling with then undiagnosed bipolar disorder and MDD.  The statement further provided the applicant’s post-service accomplishments, including the diagnosis of the bipolar disorder and MDD, which has improved under the care of a doctor, and that his medical conditions undoubtedly affected his decision-making in March 2010.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	20 September 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	11 June 2010
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	B Co, 3rd Bn, 75th Ranger Regiment, Fort Benning, GA
	f.	Current Enlistment Date/Term:	20 August 2008, 4 years, 17 weeks
	g.	Current Enlistment Service:	1 year, 9 months, 22 days 
	h.	Total Service:	1 year, 9 months, 22 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3 
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	116
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (090709-090810)
	q.	Decorations/Awards:	NDSM; ICM-CS; ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 20 August 2008, for a period of 4 years and 17 weeks.  He was 18 years old at the time of entry and a high school graduate.  He served in Iraq.  He completed 1 year, 9 months, and 22 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 30 April 2010, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c(2), for misconduct (commission of a serious offense), specifically for testing positive for amphetamines (100309).

2.  Based on the above misconduct, the commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 11 May 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted 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 23 May 2010, 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 was separated on 11 June 2010, 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 16 April 2010, for wrongfully using amphetamines (100304-100309).  The punishment consisted of reduction to the grade of E-1, forfeiture of $723 per month for two months (suspended), 45 days of extra duty and restriction, (FG). 

2.  Four negative counseling statements, dated between 18 March 2010 and 20 April 2010, for being recommended for involuntary separation, and testing positive for amphetamines.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided his DD Form 214 for service under current review; APFT certificate of achievement; airborne school diploma; Ranger indoctrination program diploma; 75th Ranger Regiment assignment orders; ERB; letter rendered by a psychologist, dated 13 May 2010; letter rendered by a psychiatry, dated 13 May 2010; applicant’s grandfather death certificate; memorandum, dated 16 March 2010, subject: Company Commander’s Required Response to a Positive Urinalysis Test Report that Requires a Medical Review Officer (MRO) Determination; counseling statement, dated 24 March 2010; applicant’s self-authored statement, dated 12 May 2010; applicant’s election of rights, dated 11 May 2010; and extracted copies of two separate 2004 ADRB cases. 

POST-SERVICE ACTIVITY: 

The applicant states, in effect, since his discharge, he has been managing his illness more effectively; he has been under doctor’s care, “has continued treatment for bipolar disorder and MDD,” and his conditions have improved; he has been consistently employed, working at a screen printing business; and he has completed two years worth of post-secondary classes and hopes to complete his bachelor’s degree with a university.

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 a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice and 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 the incident that caused his discharge was the only one in his entire Army career.  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 that he had good service which included excelling at every task, scoring 297 on his APFT, completing the Army Airborne School, receiving an assignment with 75th Ranger Regiment, graduating from the Ranger Indoctrination Program, serving in Iraq, and being promoted shortly after returning from Iraq.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the serious incident of misconduct and the documented action under  Article 15 of the Uniform Code of Military Justice.

6.  Although the applicant does not dispute the facts that led to his discharge, but contends his mounting bipolar and MDD symptoms contributed to the incident that led to his discharge.  The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.  

7.  The applicant’s third party statements, specifically, his doctor’s statement recommending an honorable discharge because of his emotional troubles, it is determined that the persons providing the statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity and an upgrade of his discharge.

8.  The applicant contends that since his discharge, he has been managing his illness more effectively; he has been under doctor’s care, “has continued treatment for bipolar disorder and MDD,” and his conditions have improved; he has been consistently employed, working at a screen printing business; and he has completed two years worth of post-secondary classes and hopes to complete his bachelor’s degree with a university.  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.  

9.  Moreover, the Army Discharge Review Board is authorized to consider post-service factors in the recharacterization 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.

10.  The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill, which would be an enormous help toward seeking to build a productive life.  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.

11.  Furthermore, by regulation, an under other than honorable conditions (UOTHC) discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for him receiving a general, under honorable condition discharge instead of the normal UOTHC discharge.  The record contains no evidence of arbitrary or capricious actions by the applicant’s command, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

12.  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:  31 January 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

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)		AR20130017518

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1