IN THE CASE OF: BOARD DATE: 10 June 2015 CASE NUMBER: AR20140007730 ___________________________________________________________________________ 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 unjustly/unfairly discharged. He contends that his chain of command cites in the separation packet that "rehabilitation and further counseling be waived as it will not produce a quality Soldier." However, no rehabilitation efforts are part of the record other than negative counseling. The commission of a serious offense was misrepresented as defined in Chapter 14, AR 635-200; the separation action violated the Army policy of "Limited Use," in the separation action as the applicant was not afford the opportunity to self enroll or was not command referred to ADAPC or ASAP; the applicant was not afforded proper medical care and consideration for wounds received post deployment that may have greatly contributed to his misconduct. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 30 April 2014 b. Discharge received: General, Under Honorable Conditions c. Date of Discharge: 30 December 2004 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: C Co, 2nd Bn, 87th IN Rgt, 10th Mountain Div (LT), Fort Drum, NY f. Current Enlistment Date/Term: 29 May 2002, 3 years g. Current Enlistment Service: 2 years, 7 months, 2 days h. Total Service: 2 years, 7 months, 2 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 88 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Afghanistan (040329-040515) It appears the dates of combat service may be incorrect; UCMJ documents in the record indicate the applicant was serving in Afghanistan on or about 21 October 2003. q. Decorations/Awards: PH, NDSM, GWOTSM, ASR, CIB 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 29 May 2002, for a period of 3 years. He was 19 years old at the time of entry and a high school graduate. His record indicates he served in Afghanistan; achieved the rank of SPC/E-4; and earned several awards to include the PH and the CIB. He was serving at Fort Drum, NY when separation action was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 19 November 2004, 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 (serious offense). Specifically for the following offenses: a. while deployed to Afghanistan, and posted as a sentinel was found sleeping on his post (031021), b. between (040614 and 040714) wrongfully used marijuana, and c. was convicted by Summary Court-Martial (041022) for disobeying a superior commissioned officer and wrongfully using marijuana. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 9 December 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 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 commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 4. On 14 December 2004, 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 30 December 2004, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 6. The applicant’s service record contains no evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, imposed on 4 December 2003, for being found sleeping on his post (031021) at Bagram Airfield, Afghanistan. The punishment consisted of reduction to the grade of E-2, forfeiture of $645.00 pay per month for two months (suspended), and extra duty for 45 days (FG). 2. There is a DD Form 2624, dated 21 July 2004, which shows the applicant tested positive 14 July 2004, for THC. 3. Article 15, imposed on 30 July 2004, for the wrongful use of marijuana between (040614 and 040714). The punishment consisted of reduction to the grade of E-1, forfeiture of $597.00 pay for two months, and extra duty and restriction for 45 days (FG). 4. There is a positive urinalysis report contained in the record coded; IU (Inspection Unit), 7 September 2004, THC. 5. Summary Court-Martial, imposed on 22 October 2004, for willfully disobeying a superior commissioned officer (040813) and wrongful use of marijuana between (040807 and 040907). The punishment consisted of forfeiture of $796.00 pay and confinement for 30 days. 6. A Report of Mental Status Evaluation, dated 26 August 2004, which indicates the applicant was diagnosed with occupational problems. It was also noted that there was no psychiatric disorder that required disposition through medical channels, the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in administrative proceedings. The applicant was cleared for any administrative or judicial action deemed appropriate by his command. 7. Two negative counseling statements dated 22 July 2004 and 17 August 2004, for testing positive for marijuana on a urinalysis (040714), violation of Article 112a and Article 92, and notification of intention to separate based on two Field Grade Article 15s. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 with attachment, a self-authored statement, letters of support, an extract from The Mountaineer Online, dated 19 February 2004, a copy of his separation orders, dated 20 December 2004, copy of his separation packet, litigation packet, a copy of his decision letter from the Department of Veterans Affairs, dated 24 November 2014, which awarded him 30 percent service connected disability for PTSD with TBI (also claimed as anxiety and depression), and a copy of his DD Form 214 for the period of service under review. POST-SERVICE ACTIVITY: None was 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. However, after examining the applicant’s record of service, the documents 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 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. By the misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by two Article 15s and a Summary Court-Martial for multiple violations of the Uniform Code of Military Justice (which included wrongfully using marijuana on two occasions and sleeping on duty while deployed). 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 he was unfairly/unjustly discharged. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly/unfairly discharged. In fact, the applicant’s Article 15s for the wrongful use of marijuana and summary court-martial justify a discharge for misconduct. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 5. The applicant contends his record reflects no rehabilitation efforts other than negative counseling. 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. The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. 6. Furthermore, before initiating discharge proceedings, the command ensured the applicant was appropriately counseled about his deficiencies which could lead to separation. The command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier. The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies. As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service. 7. 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. 8. The applicant contends he was not afforded proper medical care and consideration for wounds received post deployment that may have greatly contributed to his misconduct. However, as stated by the applicant he did not take the initiative to seek help with the deep feelings of depression and anxiety. Prior to the applicant's discharge, a Report of Mental Status Evaluation, indicated the applicant had no psychiatric disorder that required disposition through medical channels, the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in administrative proceedings. The applicant was cleared for any administrative or judicial action deemed appropriate by his command. 9. The independent documents submitted by the applicant from the Department of Veterans Affairs awarding him 30 percent service connected disability for PTSD and TBI were noted. However, the fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. 10. 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. By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. It appears the applicant’s generally good record of service was the basis for his receiving a general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge. The character of the applicant’s discharge is commensurate with his overall service record. 11. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 10 June 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: Yes [redacted] Witnesses/Observers: NA 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: 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) AR20140007730 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1