IN THE CASE OF: BOARD DATE: 8 December 2014 CASE NUMBER: AR20140009915 ___________________________________________________________________________ Board Determination and Directed Action 1. After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined the discharge is inequitable. The Board found the length and quality of the applicant's service, to include his combat service and the circumstances surrounding his discharge, (i.e., additional evidence and capriciousness of chain of command). 2. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, and an administrative correction to the narrative reason for separation to the following: a. block 25, separation authority changed to AR 635-200, Paragraph 14-12b, b. block 26, separation code changed to JKA, c. block 27, reentry code changed to 3, and d. block 28, narrative reason for separation changed to Pattern of Misconduct. 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 his under other than honorable conditions discharge be upgraded to honorable. 2. The applicant states, in effect, he has new evidence to present to the board. The evidence notes a diagnosis of Traumatic Brain Injury (TBI) and Post Traumatic Stress Disorder (PTSD). DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 6 June 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 27 March 2009 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: B Co, 1/2d Cav Regt, Vilseck, Germany f. Current Enlistment Date/Term: 26 May 2005, 3 years and 16 weeks g. Current Enlistment Service: 3 years, 10 months, 2 days (retained in Service 194 days for the convenience of the government) h. Total Service: 3 years, 10 months, 2 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 11C, Indirect Fire Infantryman m. GT Score: 108 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (070813-081019) q. Decorations/Awards: ARCOM, NDSM, ICM, w/CS, GWOTSM, ASR OSR-2 r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: Yes SUMMARY OF SERVICE: The record shows the applicant enlisted in the Army on 26 May 2005, for a period of 3 years and 16 weeks. He was 18 years old and a high school graduate. He was trained in military occupational specialty (MOS) 11C, Indirect Fire Infantry. His record documents no acts of valor or significant achievements. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 27 February 2009, the applicant was charged with the following offenses: a. wrongful use of marijuana (070701, 070801, 081205, 090105), b. willful damage by punching a door, military property (081031), and c. failed to go at the time prescribed to his appointed place of duty (081204, 081208 and 080206). 2. On 2 March 2009, 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 under other than honorable conditions 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. 3. On 17 March 2009, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank. 4. The applicant was discharged from the Army on 27 March 2009, with a characterization of service of under other than honorable conditions. 5. The applicant’s record of service does not show any record of unauthorized absences or time lost. 6. Subsequently, upgraded the applicant’s discharge to general, under honorable conditions. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. FG Article 15, dated 21 December 2007, for wrongful use of marijuana (070701 and 070801). 2. Several negative counseling statements: a. Failure to report for duty for accountability formation, 090206, 090123, 081208, and 081204. b. Removal of SM’s restriction to the Barracks and continuation of alcohol restriction, dated 081120. c. SM was picked up by the MP’s for possible domestic abuse/damage to government property dated, 081103. d. Disobeying a direct order from a commissioned officer, disobeyed a lawful order from non-commissioned officer, and drinking under age, dated 060731. e. Wrongful use, possession of controlled substances, and testing positive for an illegal substance, tetrahydrocannabinol (THC) dated, 060123. 3. The urinalysis testing results indicated positive result for THC with a nanogram (ng) 258 and a ng 93, dated 090122 and 070906. 4. Police Report, dated 070914, indicated the applicant tested positive for THC, the active ingredient in marijuana during his unit’s urinalysis that was administered on 070801. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, and a seven page service-connection decision memorandum from the Department of Veterans Affairs dated, 21 November 2013. 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. 2. 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. 3. 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. 4. 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. 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 military records, the issues and documents 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. By the pattern of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by negative counseling statements, urinalysis, MP report and an Article 15 for multiple violations of the Uniform Code of Military Justice. 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 is receiving 10 percent disability from the Department of Veterans Affairs for service-connected injuries (i.e. TBI and PTSD). The contentions 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 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. 5. The records show the proper discharge and separation authority procedures were followed in this case. 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: Personal Appearance Date: 8 December 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: Yes Board Vote: Character Change: 4 No Change: 1 Reason Change: NA No Change: NA (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Pattern of Misconduct Change Authority for Separation: AR 635-200, Paragraph 14-12b Change RE Code to: Re-Code 3 Grade Restoration to: NA Other: JKA 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) AR20140009915 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1