IN THE CASE OF: Mr. BOARD DATE: 28 January 2015 CASE NUMBER: AR20140003148 ___________________________________________________________________________ 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 general, under honorable conditions discharge to honorable. 2. The applicant states, in effect, he was separated prematurely from the military. He states, his chain of command did not wait for the final judgment from the civilian legal system before discharging him from the military. He states, he received a sentence of five years probation, completed it in 2.5 years and the charge was expunged from his record. He states, he may have been able to remain in the military while on probation and deploy with his unit to Afghanistan. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 14 February 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 19 March 2010 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200 Chapter 14-12c(2), JKK, RE-4 e. Unit of assignment: G Company, 2-320th Field Artillery Regiment Fort Campbell, KY f. Current Enlistment Date/Term: 24 July 2007/3 years, 18 weeks g. Current Enlistment Service: 2 years, 5 months, 22 days h. Total Service: 2 years, 5 months, 22 days i. Time Lost: 64 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 88M10, Motor Transport Operator m. GT Score: 96 n. Education: GED o. Overseas Service: SWA p. Combat Service: Iraq (080209-081122) q. Decorations/Awards: ARCOM, NDSM, GWOTSM, ICM-CS, ASR OSR, CAB r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 24 July 2007, for a period of 3 years and 18 weeks. He was 27 years old at the time of entry and had a General Equivalency Diploma. He served in Iraq and earned an ARCOM and CAB. He completed 2 years, 5 months, 22 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Campbell, KY. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 22 February 2010, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c(2), misconduct (drug abuse). Specifically for wrongfully attempting to manufacture methamphetamine. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 24 February 2010, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and did not submit 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 9 March 2010, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was separated on 19 March 2010, 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 of 3. The applicant was separated in the grade of E-1; however, the action that reduced him is not founding the available record. 6. The applicant's record shows he was AWOL during the period 4 September 2009 through 7 November 2009. He was returned to military control after confinement by civilian authorities. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Several counseling statements, dated between 21 February 2008, for APFT failure and promotion ineligibility, and 22 July 2009, for being drunk on duty and initial and monthly performance counseling. 2. MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 13 January 2010, reflects the applicant had a clear and normal thought process, was mentally responsible, and had a negative screening for Post Traumatic Stress Disorder and mild Traumatic Brain Injury. 3. 45th Judicial Court, Circuit Court Docket, dated 15 December 2009, reflects the applicant was charged with attempting to manufacture methamphetamine. 4. FC Form 4240 (Command Serious Incident Report (CSIR), dated 4 September 2009, reflects the applicant was arrested for possibly manufacturing methamphetamines. 5. Two DA Forms 4187 (Personnel Action), dated 8 September 2009 and 10 November 2009, reflects the applicant’s duty status changed from present for duty (PDY) to confined by civil authority (CCA) and CCA to PDY. 6. Commander’s Report, dated 22 February 2010, reflects the applicant had a record of disciplinary action, including non-judicial punishment; however, the action is not found in the available record. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 28 January 2014, a DD Form 214, five letters from the Law Office of Mueller, Beck and Meyer, dated between 27 January 2010 and 23 December 2010, and multiple court documents from the State of Missouri. POST-SERVICE ACTIVITY: The applicant did not provide any in support of 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. 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. The applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by his arrest for attempting to manufacture methamphetamines and a counseling statement for being drunk on duty. As a note, the Commander’s Report, dated 22 February 2010, indicates the applicant had a disciplinary record, to include non-judicial punishment; however, the record is void of this evidence. 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 he was sentenced to five years probation and could have remained in the military; however, his chain of command did not wait for final judgment from the civilian legal system before discharging him from the Army. However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 5. 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. 6. The records show the proper discharge and separation authority procedures were followed in this case. 7. 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: 28 January 2015 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 Honorable Conditions ADRB Case Report and Directive (cont) AR20140003148 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1