IN THE CASE OF: BOARD DATE: 24 June 2015 CASE NUMBER: AR20140004349 ___________________________________________________________________________ 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 that the characterization of service was too harsh based on the applicant’s overall length and quality of service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant partial 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 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 discharge characterization of service from under other than honorable conditions to honorable. 2. The applicant states, in effect, that his current characterization of service does not accurately reflect the awards and training he successfully completed during his time in the Army and only reflects an isolated incident. The applicant admits he used an un-prescribed medication after his transfer from Fort Riley, KS; however, he suffered from a degenerative disk disease in his back that caused him significant amounts of pain on a consistent basis. He contends the medications he tested positive for during a urinalysis were the same medications he was taking at his previous duty station for his back. He believes he was not fairly treated medically or professionally due to his permanent profile which was related to his condition. He contends he continues to struggle with the conditions of PTSD and a degenerative disk disease that he incurred while in service. He believes his characterization of service will prevent him from receiving VA treatment that he would like to receive to better his life for himself and his family. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 6 March 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 9 December 2013 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, Chapter 14, paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: C Co, 2nd Bn, 1st BSTB, 2nd ABCT, 1st IN Div, Fort Riley, KS f. Current Enlistment Date/Term: 17 February 2009, 4 years (The enlistment was extended 15 months on 27 June 2011, giving the applicant a new ETS date of 16 May 2014) g. Current Enlistment Service: 4 years, 9 months, 23 days h. Total Service: 7 years, 2 months, 20 days i. Time Lost: None j. Previous Discharges: RA-060920-090216/HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 12B10, Combat Engineer m. GT Score: 113 n. Education: HS Graduate o. Overseas Service: Germany, Southwest Asia p. Combat Service: Iraq (080401-090523) q. Decorations/Awards: ARCOM, AAM-2, AGCM-2, ICM-w/2CS, VUA, NDSM, GWOTSM, NPDR, ASR-2 r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 20 September 2006, for a period of 3 years and 19 weeks. On 17 February 2009, he reenlisted for 4 years and extended his enlistment for 15 months on 27 June 2011. He was 22 years old at the time of reenlistment and a high school graduate. His record indicates he served in Iraq; achieved the rank of SGT/E-5; and earned several awards to include the ARCOM, two AAMs and two AGCMs. He was serving at Fort Riley, KS when separation action was initiated. He competed 7 years, 2 months, and 20 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 28 August 2013, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs for testing positive for amphetamine, oxycodone, and oxymorphone (130320), positive for amphetamines (130523), oxycodone (130619), and oxycodone and oxymorphone x 2 (130625 and 130715). 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 18 September 2013, 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 behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge. 4. On 5 November 2013, the separation authority 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 9 December 2013, 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), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There is a positive urinalysis report contained in the record coded; IR (Inspection Random), 20 March 2013, oxycodone and oxymorphone. 2. Article 15, imposed on 8 May 2013, for wrongfully using oxymorphone x 2 between (130316 and 130320) and wrongfully using amphetamine x 2 between (130316 and 130320). The punishment consisted of reduction to the grade of E-4, forfeiture of $1201.00 pay per month for two months, and extra duty and restriction for 45 days, (FG). 3. A negative counseling statements dated 4 April 2013, for testing positive on a urinalysis test for amphetamine, oxycodone, and oxymorphone on 20 March 2013. 4. A Report of Mental Status Evaluation, dated 28 October 2013, which shows the applicant was diagnosed with an adjustment disorder with anxiety and depressed mood per AHLTA. It was noted in the evaluation that the applicant's MSE at the time was amended from 1 June 2013. The applicant was rated 2/4 on PTSD screening. He had been receiving services at BH, and upon further evaluation of the applicant, it was noted he did not have PTSD. He was psychiatrically cleared for administrative chapter (14-12c). 5. Four NCO Evaluation Reports covering the periods 1 February 2010 through 6 May 2013. The applicant was rated overall "Fully Capable" during the periods 1 February through 17 August 2012 and "Marginal" for the period 17 August 2012 through 6 May 2013. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, a self-authored letter routed through the Clinton County Veterans Service Agency, copy of documents from his medical records (4 pages), documents from his AMHRR to include (copies of awards recommendations and certificates of awards to include orders, promotion orders, service school academic evaluation reports, certificates of achievements and training) (42 pages). 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 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, the documents and the 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 4 years, 9 months, and 23 days of a 5 year and 6 months enlistment, for a total of 7 years, 2 months, and 20 days, thus the preponderance of his service was honorable. b. The record confirms the applicant received several awards, specifically an ARCOM, two AAMs, and two AGCMs, and served a tour of combat. 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. 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 partial 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 a restoration of grade to SPC/E-4. 5. The applicant contends his characterization of service does not accurately reflect the awards and training he successfully completed during his time in the Army and only reflects an isolated incident. 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, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 6. Furthermore, 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. 7. The applicant contends he continues to struggle with the conditions of PTSD and degenerative disk disease that he incurred while in service. The Report of Mental Status Evaluation (MSE) in the applicant's record shows he was diagnosed with PTSD. However, the MSE was amended indicating the applicant had been receiving services at BH, and upon further evaluation of the applicant, it was noted he did not have PTSD. He was psychiatrically cleared for administrative discharge. The applicant should continue to consult with the Veterans Service Agency. 8. Evidence in the record shows the applicant was receiving treatment for back pain at the time of discharge. However, the service record does not support and no evidence has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. 9. 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. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 24 June 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: Yes [redacted] Witnesses/Observers: NA 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: 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) AR20140004349 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1