IN THE CASE OF:  	Mr. 
      
      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR20130018028
___________________________________________________________________________

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, his discharge was inequitable because it was based strictly on substance abuse.  Due to the misdiagnosis and lack of any treatment for Post Traumatic Stress Disorder (PTSD), he self medicated.  He served and was recognized with several awards and medals for his service.  He was discharged one day prior to completing his full term of service.  He desires to receive VA benefits to help with college expenses.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		30 September 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			7 March 2013
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			D Co, 2-87th Infantry Regiment, 3rd Brigade Combat 						Team, Fort Drum, NY
f. Current Enlistment Date/Term:	3 November 2009, 3 years and 18 weeks
g. Current Enlistment Service:	3 years, 3 months, 25 days
h. Total Service:			3 years, 3 months, 25 days
i. Lost time:				10 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (110315-120314)
q. Decorations/Awards:		ARCOM, NDSM, ACM-W/2 CS, GWOTSM, ASR, 						OSR, NATO MDL, CIB
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 3 November 2009, for a period of 3 years and 18 weeks.  He was 18 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  His record also shows he served a combat tour, earned an ARCOM, CIB; and achieved the rank of SPC/E-4.  He was serving at Fort Drum NY when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 9 January 2013, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs.  Specifically for the following offenses:  

     a.  wrongfully possessing methylenedioxypyrovalerone (bath salts), (120501-120615),

     b.  without authority, absenting himself from his unit AWOL (121019),

     c.  violating a lawful general order, by wrongfully possessing spice, a chemical augmented herbal substance (120926), and

     d.  violating a lawful general order, by wrongfully using spice, a chemical augmented herbal substance (120925).

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 10 January 2013, the applicant was afforded the opportunity to consult with legal counsel and declined the opportunity, was advised of the impact of the discharge action, 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.  On 15 February 2013, 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 indicates 10 days of time lost during the period of            19 October 2012 until 29 October 2012; the mode of return is unknown.  Also the applicant was confined by military authorities during the period of 29 October 2012 until 15 November 2012 for 16 days.  However, this period is not annotated on the DD Form 214 block 29 dates of time lost during this period.

6.  The applicant was discharged from the Army on 7 March 2013, 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 28 November 2012 for by wrongfully possessing spice, a chemical augmented herbal substance (120926); violating a lawful general order, by wrongfully using spice, a chemical augmented herbal substance (120925); wrongfully possessing methylenedioxypyrovalerone (bath salts), (120501-120615); and being AWOL from his unit (121019-121029); the punishment consisted of reduction to E-1, forfeiture of $682 pay x 1 month, extra duty for 45 days and restriction for 45 days, (FG).

2.  He received 22 negative/monthly counseling statements, dated between 25 March 2010 and 29 September 2012 for initial counseling on numerous occasions, end of month performance counseling numerous times, instructions for storing POV, block leave briefing, health and welfare inspection, and possessing drugs and drug paraphernalia.

3.  The record of evidence contains three DA Forms 4187 (Personnel Action), dated 19 October 2012 and 27 November 2012, which indicated the AWOL and confinement dates. 

4.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 28 November 2012, which indicated the applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood; other substance abuse, spice.  He also had a positive PTSD screen and was referred for a comprehensive evaluation; and he was referred to the Army Substance Abuse Program (ASAP) for evaluation for other substance abuse (spice).  Subsequently he was cleared for participation in administrative proceedings.

5.  The record also contains two CID Agent’s Investigation Reports, dated 1 October 2012 and 26 September 2012, which indicated the applicant, was under investigation for possessing drug paraphernalia and using spice.

6.  A Sworn Statement, dated 26 September 2012 which the applicant admitted to consuming glass cleaner and using spice. 

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293, Veterans Affairs Rating Decision (four pages), Memorandum, Separation Under Chapter 14-12c(2), with applicant’s acknowledgement (five pages).

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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.

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 record, 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 Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By possessing and 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 a Field Grade Articles 15, 22 negative/monthly counseling statements, two CID Agent’s Reports and a sworn statement.

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 his discharge was inequitable because it was based strictly on substance abuse.  However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  The notification of separation memorandum indicated the applicant was also AWOL during the period of service under review.

5.  The applicant further contends that due to the misdiagnosis and lack of any treatment for PTSD, he self-medicated.  The applicant could have referred himself to the Community Counseling Center for assistance if he did not think the issues he was experiencing had not been properly addressed.  The independent document (VA rating decision) submitted with the application is acknowledged, indicating that the applicant was diagnosed with PTSD, which was determined to be service connected and rated as 100% disabling.  However, this condition did not overcome the reason for discharge and the characterization of service granted.

6.  Further, the evidence of record (mental status evaluation), indicated the applicant had a positive PTSD screen and was referred for a comprehensive evaluation.  That evaluation is not contained in the available record. 

7.  Also, 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.

8.  The applicant additionally contends he served and was recognized with several awards and medals for his service. 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 under review.

9.  Furthermore, the applicant contends he was discharged one day prior to completing his full term of service.  On 15 February 2013, the separation approved the applicant’s discharge.  The Enlisted Record Brief (ERB) shows the applicant’s expiration of term of service as 8 March 2013.  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.

10.  The applicant desires to receive VA benefits to help with college expenses.  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.  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:  13 November 2013     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

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                           


ADRB Case Report and Directive (cont)		AR20130018028



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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