IN THE CASE OF: BOARD DATE: 5 May 2014 CASE NUMBER: AR20140000409 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his father’s testimony, 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 to upgrade the characterization of his service from under other than honorable to general, under honorable conditions. 2. The applicant’s representative-authored statement, on his behalf, in pertinent part and in effect, contends the applicant’s misconduct was mitigated by his diagnosis, in service, of PTSD. Based on the applicant’s overall service, an upgrade is merited. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 23 December 2013 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 10 September 2007 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: B Co, 1st Bn, 22nd IN Regiment, 1st BCT, Fort Hood, TX f. Current Enlistment Date/Term: 24 May 2005, 4 years, 16 weeks g. Current Enlistment Service: 2 years, 2 months, 20 days h. Total Service: 2 years, 2 months, 20 days i. Time Lost: 27 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 112 n. Education: GED o. Overseas Service: SWA p. Combat Service: Iraq (dates NIF) q. Decorations/Awards: NDSM; GWOTSM; ASR; CIB r. Administrative Separation Board: No, unconditionally waived s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 24 May 2005, for a period of 4 years and 16 weeks. He was 19 years old at the time of entry and had a high school equivalency (GED). He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman. His record documents no acts of valor or significant achievement. He completed 2 years, 2 months, and 20 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 22 August 2007, 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 the following offenses: a. wrongfully using cocaine on two separate occasions; b. wrongfully using marijuana; c. failing to be at his appointed place of duty at the prescribed time (070606); d. being AWOL (070505-070508); and e. leaving his place of duty without proper authority (070423). 2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 3 July 2007 (note that this date precedes the notification but subsequent to his offer to plead guilty), the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily and unconditionally waived consideration of his case by an administrative separation board in accordance with his offer to plead guilty at an impending court-martial on 18 June 2007. He 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 an under other than honorable conditions discharge. 4. On 14 September 2007 (a date that precedes the date of the applicant’s discharge is considered an incorrect date stamp), the GCMCA waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 5. The applicant was discharged from the Army on 10 September 2007, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), a Separation Program Designator code (SPD) of JKK and an RE code of 4. 6. The applicant’s record of service indicates a total of 27 days of time lost for being AWOL for three days from 5 May 2007 through 7 May 2007 (he returned to his unit on 8 May 2007) and being in military confinement for 24 days from 3 July 2007 through 26 July 2007, as a result of a court-martial. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A Summary Court-Martial Results of Trial, reported that the applicant was tried on 3 July 2007 and found guilty of three specifications of violating Article 86, UCMJ, for failing to report (070606), being AWOL (070505-070508), and going from his place of duty (070423), and three specifications of wrongfully using marijuana (070213-070305) and wrongfully using cocaine on two occasions (070218-070220 and 070130-070201). His sentence consisted of reduction to E-1, forfeiture of $400, and confinement for 30 days. The charge sheet, record of trial, and confinement order are included in the record with the result of trial. 2. Two negative counseling statements, dated 21 February 2007 and 26 April 2007, for leaving his appointed place of duty; disobeying an order by his 1SG; failing urinalysis for the third time; being recommended for a court-martial; and testing positive on a urinalysis. 3. There are three positive urinalysis reports contained in the record: a. IU, Inspection Unit, 5 March 2007, marijuana b. IU, Inspection Unit, 20 February 2007, cocaine c. IU, Inspection Unit, 1 February 2007, cocaine 4. A Report of Mental Status Evaluation, dated 17 August 2007, indicates the applicant’s thought content being abnormal and memory as fair, but that he had the mental capacity to understand and participate in the proceedings, was mentally responsible, met the retention requirements of Chapter 3, AR 40-501 (does not have an unfitting diagnosis that would require medical evaluation board), and had PTSD with cannabis use and THCI abuse. The report further stated, in pertinent part, that: “He was released to garrison duty with current limitations. No cognitive or psychiatric limitations were identified that would limit his ability to distinguish right from wrong or render him unable to anticipate the consequences of his actions. He is psychologically cleared for any administrative action deemed appropriate by command. SM was diagnosed with posttraumatic stress disorder while in theater and continues to be treated for this.” EVIDENCE SUBMITTED BY THE APPLICANT: 1. Initial application: the applicant provided a personal representative-authored statement on his behalf, dated 9 December 2013; a letter, dated 17 April 2007, rendered by a doctor in the psychiatry department; and a memorandum for record, dated 15 August 2006, rendered by a psychiatrist. 2. Additional documents: (first set) applicant’s letter, dated 15 April 2014, designating his father to represent him at his hearing; two applicant’s self-authored statements; applicant’s father’s statement, dated 1 April 2014; personal representative-authored statement on his behalf, dated 7 November 2013 with added version; General Power of Attorney, dated 15 April 2014; prescription slip, dated 22 August 2006; VA letter, dated 25 May 2011; AD Consult Summary; memorandum for record, dated 22 August 2007; and Recommendation for Award, dated 25 July 2006. (Second set) two statements, dated 21 April 2014, rendered by the applicant’s parents. (Third set) VA Form 21-4138, Statement in Support of Claim, dated 14 April 2014 and applicant’s chronological record of medical care, dated 17 August 2007 and 20 February 2007. 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. However, after examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms 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 a fully honorable discharge. The applicant’s record of service was marred by a summary court-martial conviction for multiple violations of the Uniform Code of Military Justice and negative counseling statements. 3. The applicant’s contention that his diagnosis of PTSD led to his misconduct and discharge was carefully considered; however, a careful review of the applicant’s service record shows that competent medical authority determined he was mentally responsible for his actions, with thought content as clear, and was able to recognize right from wrong. His command found that his diagnosed PTSD did not sufficiently mitigate his misconduct, and there is no indication of arbitrary or capricious actions by the command. 4. Careful consideration was given to the applicant’s overall service; however, his repeated incidents of serious misconduct diminished the quality of his service. Accordingly, the character of the applicant’s discharge was commensurate with his overall service record. 5. Therefore, the applicant’s discharge was properly and equitably executed, and there is no basis for relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 5 May 2014 Location: Washington, DC Did the Applicant Testify? No. Applicant’s father testified on his behalf. Counsel/Representative: Yes Witnesses/Observers: None In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant’s father at the personal appearance hearing. Board Vote: Character Change: 2 No Change: 3 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: No Change Change RE Code to: No Change 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) AR20140000409 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1