IN THE CASE OF: BOARD DATE: 12 January 2015 CASE NUMBER: AR20140016572 ___________________________________________________________________________ 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 notwithstanding 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, and his testimony, and as a result, it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. 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 SPC/E-4. 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 under other than honorable conditions discharge to honorable or general, under honorable conditions. 2. The applicant states, in effect, that his discharge characterization is inequitable. He contends that his current characterization of service has resulted in an ongoing lack of help from the Veterans Affairs which has caused him to suffer greatly including suicidal, homelessness, and alcoholism, as well as missed educational and vocational opportunities. He contends while in Iraq, he developed a testicular condition and fractured his L4 vertebrae. He had surgery and was prescribed opiate medication so he could continue his tour. His opiate addiction began in Iraq as a result of a condition that also began there. After his return, he had trouble obtaining adequate pain management or counseling for PTSD. He believes his overall service record was exemplary and the discharge characterization has prevented him from achieving success in his life. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 17 September 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 25 August 2005 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: HHC, United States Army Medical Department Activity, Kenner Army Health Clinic, Fort Lee, VA f. Current Enlistment Date/Term: 19 November 2003, 3 years g. Current Enlistment Service: 1 year, 9 months, 7 days h. Total Service: 5 years, 2 days i. Time Lost: None j. Previous Discharges: RA-000824-031118/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 91W10, Health Care Specialist m. GT Score: 100 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (051101-060901) q. Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWOTSM, ASR CMB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army 24 August 2000, for a period of 4 years. He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 91W10, Health Care Specialist. He reenlisted on 19 November 2003 for a period of 3 years and was 21 years old at the time. His record shows he served a tour of combat, earned several awards including an ARCOM, AGCM, and a CMB; and he achieved the rank of SPC/E-4. He was serving at Fort Lee, VA, when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 2 August 2005, the applicant was charged with the following offenses: a. making official statements to a Rite Aid Pharmacist, by submitting DOD Prescription Slips for Percocet, with the signature of Dr. M.H.D on them as the prescriber, which statements were false on divers occasions between (050401-050504), b. wrongfully possessing thirty (30) tablets of oxycodone (050504), c. wrongfully using oxycodone (050503), and d. stealing a prescription pad and signature stamp, military property, of a value of less than $500, property of the United States Army. 2. On 2 August 2005, 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 UOTHC 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 UOTHC discharge is not contained in the available record and government regularity prevails in the discharge process. 3. On 22 August 2005, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UOTHC. The applicant was reduced to the lowest enlisted rank. 4. The applicant was discharged from the Army on 25 August 2005, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and a RE code of 4. 5. The applicant’s record of service does not contain any negative counseling statements, unauthorized absences, time lost or actions under the Uniform Code of Military Justice (UCMJ). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A positive urinalysis report coded IU (Inspection Unit), dated 4 May 2005, for opiates. 2. The record of evidence contains a DA Form 2823 (Sworn Statement), dated 4 May 2005, which gave an account of how he signed the doctor’s name on the prescription to get the medication. 3. The record also contains a CID Report of Investigation, dated 9 May 2005, which indicated the applicant was under investigation for forgery, larceny of private property, wrongful possession of opiates, wrongful use of opiates, making a false official statement and larceny of government property. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a memorandum for record, dated 8 August 2005, PERSTEMPO individual event listing history, certificates for award of the ARCOM, AGCM, CMB, AAM, and completion of 120 day program, medical documents from Ryon Medical and Assoc., psychological evaluation, dated 13 June 2014, chronological record of medical care, dated 9 February 2005, indicating Chronic Post-Traumatic Stress Disorder, medical documents from Longmont United Hospital, indicating a diagnosis of PTSD, hypertension, minimal social support, financial troubles, and unemployment. POST-SERVICE ACTIVITY: None provided with the 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 the characterization of his discharge was carefully considered. 2. After examining the applicant’s record of service, the documents, and the issues submitted with the application, there are several mitigating factors to merit a partial upgrade of the applicant's characterization to general, under honorable conditions for the following reasons: a. Length and quality of his service: The applicant served for five years to include a deployment to Iraq. b. The record confirms the applicant received numerous awards including an ARCOM, AAM, AGCM, and the CMB. c. The applicant achieved the rank of Specialist/E-4, and his record does not contain any evidence of negative counselings, or any other action under the Uniform Code of Military Justice. 3. This recommendation is made after full consideration of the entire applicant’s faithful and honorable service, as well as the incidents of misconducts that brought the court-martial charges against him. The evidence in this case supports 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 relief in the form of an upgrade of the characterization of service to general, under honorable. 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, hearing his testimony and notwithstanding 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, and his testimony and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. 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 SPC/E-4. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 12 January 2015 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. College transcripts b. Fort Lyon 1-Year Certificate 2. The applicant presented no additional contentions. 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: Honorable Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change Grade Restoration to: SPC/E-4 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) AR20140016572 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1