AR20140000064

IN THE CASE OF:

BOARD DATE: 5 November 2014

CASE NUMBER: AR20140000064
___________________________________________________________________________

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 APPLICANTS 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 states, in effect, his request is due to his medical conditions that includes Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI).

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 12 December 2013
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 24 September 2013
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: 22nd ECC, 14th EN Bn, Joint Base Lewis-McChord
WA
f. Current Enlistment Date/Term: 15 March 2011, 3 years, 16 weeks
g. Current Enlistment Service: 2 years, 5 months, 1 day
h. Total Service: 2 years, 5 months, 1 day
i. Time Lost: 40 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 12B10, Combat Engineer
m. GT Score: 99
n. Education: HS Graduate
o. Overseas Service: SWA
p. Combat Service: Afghanistan (110811-120719)
q. Decorations/Awards: ARCOM; ACM-CS; GWOTSM; ASR; OSR; NATO
MDL; CAB; MUC
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: NIF
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 15 March 2011, for a period of 3 years and 16 weeks. He was 20 years old at the time of entry and a high school graduate. He served in Afghanistan. He earned an ARCOM and completed 2 years, 5 months, and 1day of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The applicants disciplinary history includes:

a. accrual of 40 days of time lost for being AWOL on two separate occasions, from 24 July 2013 until he returned to his unit on 28 August 2013, and from 15 March 2013 through 20 March 2013, when he returned to his unit;
b. four specifications of wrongfully using marijuana (121201-121223, 130101-130122, 130201-130227, and 130206-130306);
c. two specifications of wrongfully using oxycodone, a controlled substance (130206-130306 and 130401-130413); and
d. stealing money, a value of $600 from an enlisted Soldier (130428).

2. On 28 August 2013, court-martial charges were preferred against the applicant for violating Articles 86, 112a, and 121, of the Uniform Code of Military Justice (UCMJ) based on the offenses outlined in the preceding paragraph. On 4 September 2013, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3. In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge. He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge. He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws. The applicant confirmed he had no desire to perform further military service and indicated he would be submitting a statement in his own behalf (NIF).

4. On 12 September 2013, the separation authority approved the applicant’s request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.

5. On 24 September 2013, the applicant was discharged accordingly. The DDForm214 (Report of Separation from Active Duty) he was issued shows he completed 2 years, 5 months and 1 day of creditable active military service and accrued 40 days of time lost due to being AWOL. The record also shows 7 days of being in military confinement from 28 August 2013 through 2September 2013.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Charge sheet with preferred charges outlined at the preceding paragraph 1.

2. Article 15, dated 19 July 2013, for wrongfully using marijuana (130204-130306), oxycodone on two occasions (130420-130425 and 130301-130306), and oxymorphone on two occasions (130420-130425 and 130301-130306), and failing to be at his appointed place of duty at the prescribed time on two separate occasions (130611 and 130610). The punishment consisted of forfeiture of $758 per month for two months, and 45 days of extra duty and restriction, (FG).

3. Article 15, dated 17 April 2013, for being AWOL (130315-130320), and wrongfully using marijuana on two separation occasions (121223-130122 and 130128-130227). The punishment consisted of a reduction to the grade of E-1, forfeiture of $758 per month for two months, 45 days of extra duty and restriction, (FG).

4. DA Form 4187, Personnel Action, dated 4 September 2013, indicates the applicants duty status changed from Confined to PDY, effective 3 September 2013.

5. DA Form 4187, Personnel Action, dated 29 August 2013, indicates the applicants duty status changed from PDY to Confined, effective 28 August 2013.

6. DA Form 4187, Personnel Action, dated 29 August 2013, indicates the applicants duty status changed from DFR to PDY, effective 28 August 2013.

7. DA Form 4187, Personnel Action, dated 26 August 2013, indicates the applicants duty status changed from AWOL to DFR, effective 26 August 2013.

8. DA Form 4187, Personnel Action, dated 26 July 2013, indicates the applicants duty status changed from PDY to AWOL, effective 24 July 2013.

9. DA Form 4187, Personnel Action, dated 21 March 2013, indicates the applicants duty status changed from AWOL to PDY, effective 20 March 2013.

10. DA Form 4187, Personnel Action, dated 18 March 2013, indicates the applicants duty status changed from PDY to AWOL, effective 15 March 2013.

11. MP Blotter Report, undated, indicates the applicant was the subject of an investigation for larceny of private funds and housebreaking.

12. Two CID Reports, dated 19 June 2013 and 20 February 2013, indicates the applicant was the subject of an investigation for wrongful use of oxycodone and oxymorphone, and marijuana, respectively. The first report included a positive urinalysis report: IR, Inspection Random, 25 April 2013, oxycodone and oxymorphone, and a list of the following additional previous positive urinalysis reports:

a. IR, Inspection Random, 6 March 2013, oxycodone and oxymorphone, and marijuana;

b. IR, Inspection Random, 6 March 2013, marijuana; and

c. IU, Inspection Unit, 22 January 2013, marijuana.

The second CID report included the following two positive urinalysis reports:

a. IU, Inspection Unit, 22 January 2013, marijuana; and

b. IR, Inspection Random, 27 February 2013, marijuana.
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 for service under current review.

POST-SERVICE ACTIVITY:

The applicant provided none.

REGULATORY AUTHORITY:

1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for 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. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2. 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.

3. 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.

4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “KFS” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “KFS” will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of his characterization was carefully considered. However, after examining the applicants record of service, and the issue and document submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. Although his record does document acts of significant achievement or valor but did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.

4. The applicant contends his request for an upgrade is due to his medical condition involving PTSD and TBI. However, the service record contains no evidence of PTSD or TBI diagnoses, and the applicant did not submit any evidence to support the contention that the discharge may have been the result of any medical condition.

5. Therefore, the reason and 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: 5 November 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) AR20140000064

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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