IN THE CASE OF: BOARD DATE: 3 June 2015 CASE NUMBER: AR20140008531 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined the discharge to be 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 to upgrade the characterization of his service from under other than honorable to general, under honorable conditions or honorable. 2. The applicant states, in pertinent part and in effect, he returned from Iraq with many psychological issues. He did not seek help but self-medicated with drugs and alcohol to deal with his pain. He understands now that he was wrong but at the time, he did not know any other way to deal with his pain. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 12 May 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 14 July 2005 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: A Co, 40th Engr Bn, 1st AD, Baumholder, Germany f. Current Enlistment Date/Term: 1 October 2002, 3 years g. Current Enlistment Service: 2 years, 9 months, 14 days h. Total Service: 5 years, 4 months, 20 days i. Time Lost: 20 days j. Previous Discharges: ARNG (000225-020930) / HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 21B10, Combat Engineer m. GT Score: 98 n. Education: HS Graduate o. Overseas Service: Germany, SWA p. Combat Service: Iraq (030425-040717) q. Decorations/Awards: ARCOM; NDSM; GWOTEM; GWOTSM; ASR; OSR-2 r. Administrative Separation Board: No, waived as part of a pretrial offer and agreement s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 1 October 2002, for a period of 3 years. He was 20 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 21B10, Combat Engineer. He served in Germany and Iraq. He earned an ARCOM. He completed 5 years, 4 months, and 20 days of active duty and reserve service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows on 9 June 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—commission of a serious offense, specifically for wrongfully using marijuana and ecstasy, controlled substances, and being AWOL (041123-041212). 2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 9 June 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and did not submit a statement on his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed action and both recommended approval of the separation with an under other than honorable conditions discharge. 4. On 7 July 2005, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted grade. 5. The applicant was discharged from the Army on 14 July 2005, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKQ, and an RE code of 3. 6. The applicant’s record contains evidence of 20 days of unauthorized absences or time lost due to AWOL from 23 November 2004 through 12 December 2004. Counseling statement, dated 11 January 2005, indicates the applicant’s AWOL status terminated upon being apprehended. (Note the AWOL period is not annotated on the applicant’s DD Form 214. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A Pretrial Offer and Agreement, dated 17 March 2005, indicates the applicant offered to plead guilty to Charges I and II and their Specifications, providing that the summary court martial convening authority agreed to refer the charges to a summary court-martial. The applicant also agreed to waive his rights to a personal appearance and the board. The SCM convening authority accepted the offer and agreement. 2. Report of Result of Trial reports that a trial by summary court-martial on 31 March 2005, found the applicant guilty of two specifications of Charge I, violations of Article 112a, UCMJ, for wrongfully using ecstasy and marijuana, and Charge II, violation of Article 86, UCMJ, for being AWOL. The sentence consisted of a reduction to E-1, forfeiture of $823, and confinement for 30 days. 3. There are two positive urinalysis reports contained in the record: a. Unstated basis, 20 November 2004, ecstasy, and b. CO, Command Directed, 13 December 2004, marijuana (note that this appears to be miscoded because the urinalysis was conducted within a day of the applicant’s return from an almost three-week AWOL in accordance with unit policy in the Army that automatically tests Soldiers returning from an AWOL status, and it should have been coded, “IO, Inspection Other”). 4. Six negative counseling statements, dated between 10 January 2005 and 18 November 2005, for not wearing his uniform properly; disorderly conduct; revocation of pass and driving privileges; receiving positive urinalysis results; and being AWOL. 5. Two DA Form 4187, Personnel Actions, reflecting the applicant’s duty status for the following period and basis: a. dated 11 January 2005, indicates the applicant’s duty status changed from AWOL to PDY, effective 12 December 2004, and b. dated 4 January 2005, indicates the applicant’s duty status changed from PDY to AWOL, effective 23 November 2004. 6. Report of Mental Status Evaluation, dated 18 May 2005, indicates the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. 7. Report of Mental Status Evaluation, dated 12 January 2005, indicates the applicant was diagnosed with Axis I as deferred – “Seen at DMH previously”; deferred Axis II; and Axis III as “denies / none noted.” EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 214 for service under current review; three decision memoranda regarding his discharge, dated 16 June 2005 and 7 July 2005; CMD letter, dated 29 April 2014; NGB Form 22, for service ending 30 September 2002; and DD Form 214 for service ending 28 September 2001. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. 2. After examining the applicant’s record of service, his military records, and the documents and issues 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. Length and quality of service: The applicant served two years, nine months, and 14 days of his three-year enlistment, thus the preponderance of his service under current review was honorable. b. The record confirms the applicant received an ARCOM and served a tour in combat. c. Documentary evidence indicates the applicant appeared to have mental health issues while on active duty, which may have contributed to the misconduct and was seen by the division mental health services; however, there is no evidence of any diagnosis for mental health issues, except a recommendation for him to be examined by a psychiatrist. 3. This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct. Although there is no evidence of any mental health diagnosis, the minimal information of having been seen in a division mental health services while on active duty was considered in this case to support a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 4. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended 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. BOARD DETERMINATION AND DIRECTED ACTION After carefully examining the applicant's record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation, the Board determined the discharge to be proper and equitable and voted to deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 3 June 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) AR20140008531 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1