IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 June 2014

      CASE NUMBER:  	AR20140006762
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review, and considering the examiner’s Discussion and Recommendation which follows, the Board determined the characterization of service was improper.  

2.  The record shows the government introduced into the discharge packet the results of a biochemical test which was coded CO (Competence for Duty/Command Direct/Fitness for Duty)  This is limited use information as defined in AR 600-85 and is protected evidence.  Use of this information mandates award of an honorable characterization of service.  

3.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was both proper and equitable and the Board 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 an upgrade of his discharge from under other than honorable conditions to general, under honorable conditions.

2.  The applicant states, in effect, his post deployment misconduct was due to Post Traumatic Stress Disorder (PTSD).

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		23 August 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			16 December 2007
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14 						Paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			549th Military Police Company, 385th Military Police 						Battalion, 3rd Sustainment Brigade, Fort Stewart, GA
f. Current Enlistment Date/Term:	1 September 2004, 5 years
g. Current Enlistment Service:	3 years, 2 months, 28 days 
h. Total Service:			3 years, 2 months, 28 days
i. Lost time:				8 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	31B10, Military Police
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (dates not in file)
q. Decorations/Awards:		PH, NDSM, ASR, MUC
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 1 September 2004, for a period of 5 years.  He was 18 years old at the time of entry with a HS diploma.  He was trained in and awarded military occupational specialty (MOS) 31B10, Military Police.  His record also shows that he served a combat tour, earned a PH; and he achieved the rank of SPC/E-4.  He was serving at Fort Stewart, GA when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 26 October 2007, 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 a pattern of misconduct.  Specifically for the following offenses:

     a.  failing to report to his appointed place of duty on a number of occasions,

     b.  without authority, AWOL (070529-070607),

     c.  testing positive for illegal substances on multiple occasions, and 

     d.  being arrested for disorderly conduct (070811).

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 31 October 2007, the applicant waived legal counsel (although his election of rights indicated he consulted with legal counsel), was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, 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 senior commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.

4.  On 21 November 2007, 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 6 December 2007, with a characterization of service of under other than honorable conditions, under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

6.  The applicant’s record of service indicates 8 days of time lost for being AWOL from 29 May 2007, until he returned on 7 June 2007.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 10 September 2007, for wrongfully using cocaine (070604-070607); and wrongfully using marijuana (070508-070607); the punishment consisted of a reduction to   E-2, forfeiture of $100 pay, extra duty for 14 days, and restriction for 14 days, (CG).

2.  An Article 15, dated 26 June 2007, for being AWOL (070529-070607); the punishment consisted of reduction to E-3 (suspended), forfeiture of $416 pay (suspended), extra duty for 14 days, and restriction for 14 days, (CG).

3.  On 5 September 2007, the suspension of punishment of reduction to E-3 and the forfeiture of $416 pay was vacated for the new offense of being disorderly (070811).
4.  The record contains two positive urinalysis reports coded IO (Inspection Other), dated        7 June 2007, for cocaine, and CO (Competence for Duty/Command Directed/Fitness for Duty), dated 13 August 2007, for THC.

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 2 April 2009, which indicated the applicant was diagnosed with an adjustment disorder; however, he was psychiatrically cleared for any administrative action deemed necessary by command.

6.  The applicant received seven negative counseling statements, dated between 26 March 2006 and 21 August 2007, for leaving his weapon in the motor pool, possessing an illegal substance, being AWOL, failing to obey and order/regulation numerous times, drunkenness, and testing positive for cocaine.

7.  Two DA Forms 4187 (Personnel Action), dated 31 May 2007 and 8 June 2007, which indicated the applicant’s present for duty and AWOL dates.

8.  A Chatham County Sheriff’s Department Uniform Booking Form, dated 11 August 2007, indicated the applicant was arrested for disorderly conduct.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149 and a letter from Disabled America Veterans (DAV).

POST-SERVICE ACTIVITY:

The applicant did not provide any information with his 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.  After a careful review of all the applicant’s military records during the period of enlistment under review, the issues submitted with the application, the characterization of service appears to be improper.  

2.  The record confirms that on 13 August 2007, the applicant was given a command directed urinalysis (CO) and he tested positive for marijuana.  

3.  There is no indication in the chapter paperwork the command believed the urinalysis was improperly coded “CO.”  There are also no CID reports or counseling statements that shed any light on the reason the urinalysis was directed.

4.  Therefore, it appears the urinalysis was properly coded CO, and the discharge was improperly characterized given the introduction of the limited use evidence in the chapter paperwork.  

5.  The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded.  

6.  The records show the proper discharge and separation procedures were not followed in this case.  

7.  Therefore, the characterization of service being improper, the analyst recommends the Board grant full relief by upgrading the applicant’s characterization to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.

8.  Furthermore, regarding the applicant’s contention that his post deployment misconduct was due to PTSD.  The service record contains no evidence of a PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review          Date:  27 June 2014           Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  None

Witnesses/Observers:  No

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:  	Honorable
Change Reason to:  		No Change
Change RE Code to:  		NA
Grade Restoration to:  		NA
Change Authority for Separation:  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)		AR20140006762



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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