IN THE CASE OF: Mr. BOARD DATE: 11 August 2014 CASE NUMBER: AR20140004864 ___________________________________________________________________________ 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 considering the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service, the medical circumstances surrounding the discharge (i.e., the applicant was granted a 70 percent disability rating for PTSD), which was approved on 23 June 2010, and as a result it is inequitable. Accordingly, the Board voted to grant full 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 both proper and equitable and voted not to change it. This action entails restoration of grade to PV2/E-2. 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, he desires to receive VA benefits for healthcare. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 18 March 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 2 September 2010 d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial/AR-635-200/ Chapter 10/KFS/RE-4 e. Unit of assignment: A Company, Warrior Transition Battalion, Fort Sam Houston, TX f. Current Enlistment Date/Term: 29 May 2007, 2 years g. Current Enlistment Service: 3 years, 3 months, 5 days h. Total Service: 4 years, 8 months, 5 days i. Time Lost: None j. Previous Discharges: RA (051228-070528)/HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 13F10, Fire Support Specialist m. GT Score: 105 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (061008-071111) q. Decorations/Awards: PH, ARCOM, AGCM, NDSM, CAB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: Yes/26 October 2011/Records Review SUMMARY OF SERVICE: The applicant enlisted in the Regular Army 28 December 2005, for a period of 5 years and 20 weeks. He was 17 years old at the time of entry and a HS Graduate. He was trained in and awarded military occupational specialty (MOS) 13F10, Fire Support Specialist. He reenlisted on 28 May 2007, for a period of 5 years and was 19 years old at the time. His record also shows that he served a combat tour, earned several awards which included a PH, ARCOM, AGCM and a CAB; he achieved the rank of SGT/E-5. He was serving at Fort Sam Houston, TX when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 7 June 2010, the applicant was charged with the following offenses: a. wrongfully using marijuana on divers occasions between (090601-100419), and b. being derelict in the performance of his duties, by willfully failing to provide a sample of his own urine for urinalysis (091215). 2. The applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser-included offense. The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did not submit a statement on his own behalf. The applicant’s chain of command’s documentation recommending approval of the Chapter 10 request with an under other than honorable conditions discharge is not contained in the available record and government regularity prevails in the discharge process. 3. On 26 August 2010, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank. 4. The applicant was discharged from the Army on 2 September 2010, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4. 5. The applicant’s record of service indicates 2 days of time lost for being confined by the civil authorities on 17 June 2009 until 19 June 2009. This period of lost time was not annotated on the DD Form 214; dates of time lost during this period. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Article 15 dated, 10 November 2009, for wrongfully using marijuana (090814-090817); the punishment consisted of a reduction to E-2 (suspended), forfeiture of $433 pay, (CG). 2. An Article 15 dated, 24 August 2009, for wrongfully using marijuana (090701-090708); the continuation sheet is not contained in the available record; the punishment consisted of a reduction to E-3, forfeiture of $433 pay x 1 month, extra duty for 14 days, and restriction for 14 days, (all punishment was suspended) (CG). 3. Two CID Reports of Investigation, dated 14 April 2010 and 17 March 2010, both with sworn statements both indicated the applicant was under investigation for wrongfully possessing marijuana, dereliction of duty, wrongfully using opiates and marijuana, failing to obey a general order, and making a false statement. 4. Two DA Forms 4187 (Personnel Action), dated 18 June 2009 and 19 June 2009, shows the applicant’s present for duty and confinement dates. 5. He received four negative counseling statements, dated between 19 June 2009 and 17 March 2010 for using marijuana, substandard performance, traffic violation corrected, wrongfully using oxycodone and oxymorphone. 6. A Physical Evaluation Board (PEB) Proceedings, dated 23 June 2010, indicated the applicant was granted a disability rating of 70 percent for Post Traumatic Stress Disorder (PTSD). 7. The record contains two urinalysis reports, one coded IU (Inspection Unit), dated 17 August 2009, and one PO (Probable Cause), dated 19 June 2009, the results for each test was redacted; three positive urinalysis reports, all three were coded IU (Inspection Unit), dated 15 December 2009 for oxycodone and oxymorphone, and dated 19 April 2010 and 15 March 2010 both for THC. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided two DD Forms 293, self-authored statement (six pages), supporting statement, VA Form 21-0845 (Authorization to Disclose Personal information to a Third Party), memorandum, Department of Veterans Affairs (VA, Notification of Completion of Proposed Rating Action, four pages), applicant’s timeline in the military (four pages), VISTA Electronic Medical Documentation, Progress Notes (eleven pages), VA Compensation Decision (seven pages), and VA Rating Decision (seven pages). 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. 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. 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 his characterization of service was carefully considered. 2. After examining the applicant’s record of service, his military records, the documents and the issue submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons: a. Overall length and quality of service: The applicant served 1 year, 5 months, of his initial contract of 5 years and 20 weeks. He reenlisted for 5 years and served 3 years, 3 months, and 5 days of that enlistment, giving him a total of 4 years, 8 months, and 5 days of military service, thus the preponderance of his service was honorable. b. The record confirms the applicant received several awards, specifically; a PH, ARCOM, AGCM, and a CAB and served a combat tour in Iraq; and c. His medical circumstances surrounding the discharge (i.e., the applicant was granted a 70 percent disability rating for PTSD), which was approved on 23 June 2010. 3. This recommendation was made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct. The evidence in this case supports a conclusion that the applicant’s characterization of service was too harsh and as a result, it is inequitable. 4. The applicant desires to receive VA benefits for healthcare. However, 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. 5. The records show the proper discharge and separation authority procedures were followed in this case. 6. In view of the foregoing, the characterization of the discharge is now inequitable and the analyst recommends the Board grant full relief in the form of an upgrade of the characterization of service to general, under honorable conditions. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable. This action entails restoration of grade to PV2/E-2 SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 11 August 2014 Location: Washington, DC Did the Applicant Testify: Yes Counsel: Yes [redacted] Witnesses/Observers: Yes – Father (W) DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. Statement of father (redacted) – 3 pages b. Medical documents, progress notes – 19 pages c. VA Rating Decision – dated May 1, 2014 – 5 pages d. VA Rating Decision – dated December 17, 2012 – 12 pages e. Brooke Army Med Ctr Medical Evaluation Board diagnosis – dated July 16, 2009 - 4 pages f. VA general information pertaining to claims – 4 pages 2. The applicant presented no additional issues. In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. 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: General, Under Honorable conditions Change Reason to: No Change Change Authority for Separation: NA Change RE Code to: NA Grade Restoration to: PV2/E-2 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) AR20140004864 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1