IN THE CASE OF: Mr. BOARD DATE: 30 May 2014 CASE NUMBER: AR20130015731 ___________________________________________________________________________ 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 characterization of service was too harsh and as a result it is now inequitable. The Board found the quality of the applicant’s service; the circumstances surrounding the discharge (i.e., there was twenty months between the applicant’s use and the start of his separation and the applicant deployed and received an ARCOM) to include his combat service mitigated the discrediting entry in the service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, 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 his characterization of service be upgraded to honorable and the narrative reason for separation changed. 2. The applicant states, in effect, he feels that his discharge should be changed due to his honorable service and not characterized by his lack of faith and neglected reports that may have never come about if he did not chose to get aid. He knows that he was suffering from extreme PTSD and in need of care at the time of his discharge. His condition has been diagnosed and documented and he is currently receiving VA care which has been extremely beneficial. His discharge was a result of an unrevealed report of a failed UA that occurred two years earlier. The report was revealed to him and his chain of command after he agreed to enter the Army Substance Abuse Program where he had hoped to get the help and care he needed after a recent deployment and marital separation. He however, was discharged other than honorably and feels that his PTSD and depression were the heart of his issues and not his service. He loved being a Soldier and leading Soldiers and he only feels that he deserved help after the sacrifices he and every Soldier made. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 22 August 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 30 July 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Chapter 14-12c (2), JKK, RE-4 e. Unit of assignment: B Company, 63rd Expeditionary Signal f. Battalion, 35th Signal Brigade (Theater Tactical), Fort Gordon, GA g. Current Enlistment Date/Term: 5 February 2009, 6 years, 30 weeks h. Current Enlistment Service: 3 years, 5 months, 26 days i. Total Service: 3 years, 5 months, 26 days j. Time Lost: None k. Previous Discharges: None l. Highest Grade Achieved: SGT/E-5 m. Military Occupational Specialty: 25Q10, Multichannel Transmissions Operator/Maintainer n. GT Score: 117 o. Education: HS Grad p. Overseas Service: Southwest Asia q. Combat Service: Iraq (100821-110815) r. Decorations/Awards: ARCOM, AGCM, NDSM, GWOTSM, ICM-CS, ASR s. Administrative Separation Board: No t. Performance Ratings: No u. Counseling Statements: Yes v. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 5 February 2009, for a period of 6 years and 30 weeks. He was 18 years old at the time of entry and a high school graduate. He served a combat tour of duty in Iraq. He earned an ARCOM and an AGCM and completed 3 years, 5 months, and 26 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 2 July 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c (2), misconduct-abuse of illegal drugs. Specifically for: a. On divers occasions wrongfully used marijuana between on or about (100727-100927). 2. Based on the above misconduct, the unit commander recommended a general, under other than honorable conditions discharge. 3. On 28 June 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 5 July 2012, 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 30 July 2012, 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 of4. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are two positive urinalysis reports contained in the record: IO, Other (command policy), dated 9 August 2010, marijuana IR, Random sample, dated 19 August 2010, marijuana 2. Article 15, dated 13 June 2012, for wrongfully using marijuana on diver’s occasions between on or about (100717-100907). The punishment consisted of reduction to the grade of E-4, forfeiture of $1078.00 pay per month for two months, 45 days of extra duty and restriction (FG) 3. Three negative counseling statements dated between 17 May 2012 and 23 May 2012, for notification of consideration of separation IAW AR 635-200, Chapter 14-12b, rehabilitation failure IAW AR 635-200, Chapter 9, and two positive drug tests. 4. An Army Substance Abuse Program (ASAP) Enrollment Form dated 25 April 2012, with allied documents, for drug education. 5. A Mental Status Evaluation dated 22 May 2012, which reveals the applicant underwent a mental status evaluation that indicated he was fit for duty, including deployment, was mentally responsible, with thought content as clear, could understand and participate in any administrative proceedings and was able to recognize right from wrong. He was screened for PTSD and TBI and it was determined these conditions were not present or if present, did not meet AR 40-501 criteria for a medical evaluation board. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application dated 17 August 2013, VA Rating Decision document assigning him 50% for PTSD, dated January 10, 2013, memorandum from the Army Substance Abuse Program in reference to the applicant’s treatment dated 18 May 2012. 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. ANALYSTS’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 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 non-commissioned officer. The applicant, as an NCO, 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 an honorable discharge. The applicant’s record of service was marred by 1 Article 15 for multiple violations of the Uniform Code of Military Justice and 2 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 his discharge should be changed due to his honorable service and not characterized by his lack of faith and neglected reports that may have never come about if he did not chose to get aid. 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 two negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice. 5. The applicant contends he was discharged other than honorably and feels that his PTSD and depression were the heart of his issues and not his service. He loved being a Soldier and leading Soldiers and he only feels that he deserved help after the sacrifices he and every Soldier made. The applicant’s post-service diagnosis of PTSD according to the Veterans Administration (VA) is acknowledged. Even though the VA has granted the applicant a service connected disability for Post-Traumatic Stress Disorder (PTSD), a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. 6. The record shows that on 22 May 2012, the applicant underwent a mental status evaluation which indicated he was fit for duty, including deployment, was mentally responsible, with thought content as clear, could understand and participate in any administrative proceedings and was able to recognize right from wrong. He was screened for PTSD and TBI and it was determined these conditions were not present or if present, did not meet AR 40-501 criteria for a medical evaluation board. 7. The applicant further contends his discharge was a result of an unrevealed report of a failed UA that occurred two years earlier. The report was revealed to him and his chain of command after he agreed to enter the Army Substance Abuse Program where he had hoped to get the help and care he needed after a recent deployment and marital separation. The applicant's positive urinalysis test was a result of the command’s random urine testing program to maintain good order and discipline within the unit. 8. The applicant tested positive on 9 August 2010, for marijuana and again on 19 August 2010, for marijuana. Before he could be referred to the Army Substance Abuse Program (ASAP) he was deployed. In 2012, the applicant attempted to self-refer to ASAP. When it was discovered he had an outstanding UA, it converted the referral to a command referral. The applicant was subsequently declared a rehabilitation failure. The command gave the applicant an Article 15 when the outstanding positive UA was discovered. The applicant’s attempted self-referral was unsuccessful as it followed a positive UA that required command referral to ASAP, although it came some 20 months after the fact. 9. The records show the proper discharge and separation authority procedures were followed in this case. 10. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the examiner recommends the Board deny relief. 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 that the characterization of service was too harsh and as a result it is now inequitable. The Board found that the quality of the applicant’s service; the circumstances surrounding the discharge (i.e., there was twenty months between the applicant’s use and the start of his separation and the applicant deployed and received an ARCOM) to include his combat service mitigated the discrediting entry in the service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the Board determined the reason for discharge was proper and equitable and voted not to change it. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 30 May 2014 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 5 No Change: 0 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 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) AR20130015731 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1