IN THE CASE OF:	Mr. 

      BOARD DATE:	19 May 2014

      CASE NUMBER:	AR20140000792
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service, to include his combat service, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it.  




      
      
      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 under other than honorable to fully honorable.

2.  The applicant states, in effect, an upgrade is requested because the original discharge was not an equivalent punishment for the infraction and it has caused him a lot of difficulty in the civilian world.  He provides several documents and indicates that they would show the in depth justifying reasons for his request.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	2 January 2014
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	8 May 2013
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	HHC, 2nd Bn, 28th Infantry Regiment, Grafenwoehr, 
			Germany
	f.	Current Enlistment Date/Term:	9 February 2010, 3 years, 16 weeks
	g.	Current Enlistment Service:	3 years, 3 months, 0 days
	h.	Total Service:	3 years, 3 months, 0 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	103
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA, Germany
	p.	Combat Service:	Afghanistan (110709-120609)
	q.	Decorations/Awards:	ARCOM; NDSM; ACM-CS; GWOTSM; ASR; OSR-2; 
			NATO MDL; VUA; CIB
	r.	Administrative Separation Board: 	No, waived
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 9 February 2010, for a period of 3 years and 16 weeks, with an ETS date of 31 May 2013.  He was 20 years old at the time of entry and a high school graduate.  He served in Germany and Afghanistan.  He earned an ARCOM.  He completed 3 years and 3 months of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 16 April 2013, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct for the following basis:

	a.	receiving a FG Article 15 on 7 February 2013, for violating Article 92, UCMJ, on three occasions by wrongfully possessing spice and Article 109, UCMJ, for wrongfully damaging German Government property while he was driving impaired by both alcohol and spice;
	b.	making a false official statement to CPT B, to wit: that he did not know he couldn’t go to the shoppette, or words to that effect (130222); 
	c.	being counseled on 17 October 2012, for failing to be at his appointed place of duty, to wit: 0630 hrs accountability formation behind building 840 (121017); 
	d.	being counseled on 22 January 2013, for being AWOL from 16 January 2013-1230 hrs to 17 January 2013-1100 hrs;
	e.	being counseled on 22 January 2013, for failing to be at his appointed place of duty, to wit: 22 January 2013-0630 hrs accountability formation at building 840;
	f.	being counseled 12 March 2013, for failing to be at his appointed place of duty twice, to wit: 8 March 2013-l800 hrs at building 633 and 10 March 2013-0900 hrs at building 633 for extra duty; and
	g.	being in an accident and submitting two blood withdrawals on a voluntary basis that subsequently tested positive for the presence of “the Cannabi mimetics drug XLR-1 1 (Spice),” and violating Article 92, UCMJ by failing to obey a lawful general order, to wit: Secretary of the Army’s Memorandum on Army Directive 20 12-14 (Prohibited Substances (Controlled Substance Analogues)), dated 29 May 2012.

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 16 April 2013, the applicant waived his right to consult with legal counsel, indicated he understood the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than under other than honorable conditions, 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 of the separation with an under other than honorable conditions discharge.  

4.  On 18 April 2013, the separation authority approved the conditional waiver request, 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 8 May 2013, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  However, the commander’s initiating and forwarding memoranda indicate the applicant was counseled for being AWOL from 16 January 2013, 1230 hours to 17 January 2013, 1100 hours (a period that is less than 24 hours).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are no counseling statements or UCMJ actions in the applicant’s record.  He was discharged as a PVT/E-1; the action that reduced him in rank is not available in his record.  However, the unit commander’s forwarding memorandum indicates the applicant received a FG Article 15 on 7 February 2013, for violating Article 92, UCMJ, on three occasions by wrongfully possessing spice and Article 109, UCMJ, for wrongfully damaging German Government property, and the punishment consisted of reduction to the grade of E-1, forfeiture of $758 per month for two months, and 45 days of extra duty and restriction.

2.  A GCMCA Memorandum of Reprimand (GCMCA MOR), dated 29 May 2013, for operating a motor vehicle while impaired and causing a traffic accident.  The MOR packet contains the following:

	a.	An MP Report, dated 8 January 2013, which indicates the applicant was the subject of an investigation for drunken driving, traffic accident resulting in damage to host nation and private property, failure to maintain lane, and failure to obey an order or regulation; 
	b.	Forensic Analytical Laboratory Expert’s Report, dated 17 January 2013; and
	c.	Enlisted Record Brief (ERB), dated 5 February 2013.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided the following:

	a.	memorandum for record, dated 20 March 2013, subject: Completion of Alcohol and Drug Abuse Prevention Training (ADAPT) – PRIME for Life, rendered by an ASAP Prevention Coordinator with a certificate for completing the PRIME for Life program; 
	b.	DA Form 3822, Report of Mental Status Evaluation, dated 3 October 2012, that indicates a diagnosis of knee and back pain, positive results for the PTSD and mild TBI screenings which did not meet the criteria for medical evaluation board, and positive for “Audit-C “(alcohol use) with applicant indicating he did not feel he had a problem or needs treatment; 
	c.	physician discharge summary regarding repair of ruptured tendon (left achilles injury), dated 16 January 2013; and 
	d.	separation packet consisting of commander’s notification memorandum (incomplete) and applicant’s acknowledgement (incomplete), applicant’s election of rights and waiver of consulting with counsel, dated 4 April 2013, and commander’s forwarding memorandum (incomplete). 

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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, and the documents and 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 and alcohol, 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 and alcohol policies.  By abusing illegal drugs and alcohol, the applicant knowingly risked a military career and diminished the quality of his service below that meriting a general, under honorable conditions or an honorable discharge.  The applicant’s record of service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice and a GCMCA Memorandum of Reprimand.

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 submitted several documents to justify the reason for his request for an upgrade to a fully honorable discharge.  The applicant’s submitted evidence contains documentation that supports a diagnosis of in service Post-Traumatic Stress Disorder (PTSD); however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that on 3 October 2012, the applicant underwent a mental status evaluation which indicates he was mentally responsible and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that although he may be suffering from PTSD, he knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same condition that completed their service successfully.

5.  Furthermore, the applicant’s submitted evidence contains documentation indicating he was treated for medical conditions he suffered while on active duty; however, it does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing, or that any disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.  Moreover, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.

6. The applicant’s submitted evidence also contains documentation showing the applicant successfully completed the ADAPT (Alcohol and Drug Abuse Prevention Training) or PRIME For Life program on 20 March 2013.  The applicant’s rehabilitative accomplishments have been noted as outlined 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.  

7.  Although the applicant did not specifically express his desire for VA benefits, 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.

8.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

9.  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:  Personal Appearance       Date:  19 May 2014       Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel/Representative:  Yes [Redacted]

Witnesses/Observers: None 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional document:

	a.  Character Reference – 1 page

2.  The applicant presented no additional contentions.

In addition to the evidence in the record, the Board carefully considered the additional document and testimony presented by the applicant at the personal appearance hearing.















Board Vote:
Character Change:  4	No Change:  1
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	General, Under Honorable conditions
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)		AR20140000792

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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