IN THE CASE OF: Mr. BOARD DATE: 23 April 2014 CASE NUMBER: AR20130010642 ___________________________________________________________________________ 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 discharge from general, under honorable conditions to honorable. 2. The applicant states, in effect, that he was discharged from the Army under the no-tolerance policy. His discharge was listed as drug abuse; however, he was not at the time. Shortly after arriving at Fort Wainwright, he was punished for the possession of paraphernalia. He was enrolled in the Army Substance Abuse Program (ASAP) but was told that he would not be able to complete the program due to his approaching deployment. While deployed, his flag was lifted and he was promoted from E-1 to E-4 and he received several awards within a year. A few weeks after returning from deployment, he purchased some paraphernalia, again, and a small amount of spice. He hide the purchase in his room and forgot all about it until it was discovered during an inspection. He was totally unaware of its existence. He was not offered ASAP again, even though he did not finish the first time. He was a good Soldier and he totally regrets his poor decision every day. Since his discharge, he began to work and go to school immediately. The type of discharge he received is preventing him from using the GI Bill, which he paid into for a year. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 4 June 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 25 September 2012 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, 14-12c(2) JKK, RE-4 e. Unit of assignment: C Company, 1st Battalion, 24th Infantry Regiment Fort Wainwright, AL f. Current Enlistment Date/Term: 3 February 2010, 6 years and 16 weeks g. Current Enlistment Service: 2 years, 7 months, 23 days h. Total Service: 2 years, 7 months, 23 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 132 n. Education: High School Graduate o. Overseas Service: SWA p. Combat Service: Afghanistan (110426-120409) q. Decorations/Awards: ARCOM, NDSM, ACM-w/CS-2, GWOTSM, ASR OSR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 3 February 2010, for a period of 6 years and 16 weeks. He was 20 years old at the time of entry and was a high school graduate. He was serving at Fort Wainwright, AK, when his discharge was initiated. He was awarded an ARCOM and served a combat tour in Afghanistan. SEPARATION FACTS AND CIRCUMSTANCES 1. The evidence shows that on 29 August 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct-Abuse of Illegal Drugs, specifically for violating USARAK CG Policy #021 on or about 20 April 2012 and on 18 May 2012 by wrongfully smoking spice, and on or about 30 July 2012 by possessing spice. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. 29 August 2012, the applicant waived consulting with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his 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 of the separation with a general, under honorable conditions discharge. 4. On 10 September 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 discharged from the Army on 25 September 2012, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with an RE code of 4. 6. The service record does not contain any evidence of time lost. 7. The record does not contain the results of a drug test or urinalysis results. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD 1. FG Article 15, dated 14 December 2010, for violating USARAK CG Policy #0-21, by wrongfully possessing the substance spice (101127). The punishment imposed consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $723.00, suspended, 45 days of extra duty and restriction. 2. FG Article 15, dated 15 August 2012, for violating USARAK CG Policy #0-21, by wrongfully smoking the intoxicant spice(120420 and 120518). The punishment imposed consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $745.00 for two months, 45 days of extra duty and restriction. 3. Numerous negative counseling statements covering 25 March 2011 through 15 August 2012, for using and possession of spice and having paraphernalia, discovery of the spice during a room inspection, failing to obey a lawful order, failing to complete a brigade run, notification of chapter initiation, monthly performance, and recommendation for UCMJ, 4. A CID Report of Investigation with several dates starting with the consent to search on 30 July 2012, and the final report on 4 August 2012. EVIDENCE SUBMITTED BY THE APPLICANT A DD Form 293, DD Form 214, an ARCOM with the recommendation, and the Non-Article 5 NATO medal. POST-SERVICE ACTIVITY: The applicant contends he is working and attending school. 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 service record 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, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier. The applicant, as a Soldier, 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. 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 that he had good service which included a combat tour. 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 his serious offense of abusing an illegal drug. 5. The applicant contends he wasn’t given a chance to attend ASAP again, even though he was not allowed to finish the first time. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. 6. The applicant requests an upgrade of his discharge in order to allow him educational benefits through the use of the GI Bill. 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. 7. 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. 8. 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: 23 April 2014 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) AR20130010642 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1