IN THE CASE OF:  	Mr.

      BOARD DATE:  	20 June 2014

      CASE NUMBER:  	AR20130017801
___________________________________________________________________________

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 under other than honorable to general, under honorable conditions.

2.  The applicant states, in effect, he was told he could request for an upgrade of his discharge after six months because he successfully completed basic training and AIT.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 September 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			31 July 2009
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			HHB, 2nd Bn, 3rd FA, Fort Bliss, TX
f. Current Enlistment Date/Term:	13 February 2008, 5 years
g. Current Enlistment Service:	1 year, 2 months, 5 days
h. Total Service:			1 year, 2 months, 5 days
i. Time Lost:				101 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	25U10, Sig Supt Sys Specialist
m. GT Score:				95
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 13 February 2008, for an unknown period of service.  He was 20 years old at the time of entry and a high school graduate.  He was serving at Fort Bliss, TX when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  




SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 22 June 2009, 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 (serious offense) for failing to report to his appropriated place of duty on numerous occasions and wrongfully engaging in the use of a controlled substance (cocaine).

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 23 June 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived his right to an administrative separation board, and did not submit a statement on 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.  On 17 July 2009, 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 was discharged from the Army on 31 July 2009, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

6.  The applicant’s record of service indicates 101 days of time lost; 23 days for being AWOL from 23 December 2008 until his return on 16 January 2009, 3 days for being AWOL from 27 February 2009 until his return on 2 March 2009, 56 days for being AWOL from 5 March 2009 until his return on 1 May 2009, and 19 days for being in military confinement from 3 June 2009 until his release on 22 June 2009.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 20 November 2008, for the wrongful use of cocaine between (081003 and 081006) and for going AWOL x 2 (081003-081006 and 081016-081105).  Punisment consisted of reduction to the grade of E-1, forfeiture of $673.00 pay per month for two months, extra duty and restriction for 45 days, and a oral reprimand (FG).

2.  Nine DA Forms 4187 (Personnel Action) which changed the applicant's duty status from PDY to AWOL and AWOL to PDY several times, AWOL to DFR and DFR to PDY, PDY to confinement and confinement to PDY.

3.  Summary Court-Martial, dated 3 June 2009, for wrongful use of cocaine x 2 between (081102 and 081105 and 090106 and 090109) and for going AWOL x 3 between (081223 and 090116, 090223 and 090302, and 090305 and 090501).  Punishment consisted of forfeiture of $933.00 pay per month for one month and confinement for 30 days. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

None provided with the 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.

ANALYST’S 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 that 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.  By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by three incidents of cocaine use and several periods of AWOL which result in a summary court-martial and Article 15 for multiple violations of the Uniform Code of Military Justice.

3.  The applicant contends he was told he could ask for an upgrade six months after his discharge.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable.

4.  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.

5.  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:  20 June 2014        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 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)		AR20130017801



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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