AR20140001115

IN THE CASE OF: Mr.

BOARD DATE: 3 December 2014

CASE NUMBER: AR20140001115
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicants record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant’s 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 both proper and equitable and voted not to change it.

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 an upgrade of his discharge from under other than honorable to honorable or general, under honorable conditions.

2. The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to receive his G.I. Bill benefits.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 13 January 2014
b. Discharge received: Under Other Than Honorable Conditions
c. Date of Discharge: 30 September 2011
d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment: D Co, 203rd BSB, 3rd BCT, 3rd IN Div, Fort Benning, GA
f. Current Enlistment Date/Term: 11 December 2008, 6 years
g. Current Enlistment Service: 2 years, 9 months, 20 days
h. Total Service: 4 years, 3 months, 20 days
i. Time Lost: None
j. Previous Discharges: RA-070611-081210/HD
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 91H10, Track Vehicle Repairer
m. GT Score: 94
n. Education: GED
o. Overseas Service: Southwest Asia
p. Combat Service: Iraq (091008-100923)
q. Decorations/Awards: ARCOM, AAM-3, ICM-w/CS, MUC, AGCM, NDSM, ASR, OSR
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 11 June 2007, for a period of 3 years and 24 weeks. He reenlisted 11 December 2008, for a period of 6 years. He was 20 years old at the time of reenlistment and had a high school equivalency (GED). His record indicates he served a period of combat in Iraq; achieved the rank of SPC/E-4; and earned several awards to include the ARCOM, three AAMs, and the AGCM. He was serving at Fort Benning, GA when his separation was initiated. He completed 4 years, 3 months, and 20 days of total active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 31 August 2011, 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) for failure to obey a lawful regulation by possessing Spice.

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 29 August 2011, 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 indicated he would submit a statement on his behalf (NIF). 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 with an under other than honorable conditions discharge.

4. On 22 September 2011, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of under other than honorable conditions.

5. The applicant was discharged from the Army on 30 September 2011, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3.

6. The applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Five negative counseling statements dated between 5 May 2011 and 16 August 2011, for failure to follow proper procedures, lying, not being at his appointed place of duty, failure to report, and possession of illegal substance/admitted use of illegal substance (Spice).

2. A CID Report dated 1 August 2011, that indicates the applicant was the subject of an investigation for wrongful use and possession of Spice.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

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 members 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 Soldiers separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge was carefully considered.

2. After examining the applicants record of service, the documents and the issues submitted with the application, there are several mitigating factors to merit a partial upgrade of the applicant’s discharge to general, under honorable for the following reasons:

a. Length and quality of service: The applicant served 4 years 3 months, and 20 days of total military service, thus the preponderance of his service was honorable, and

b. The record confirms the applicant received several awards, specifically an ARCOM, three AAMs, and the AGCM.

3. This recommendation is made after full consideration of all of the applicants faithful and honorable service, as well as the record of misconduct. The evidence in this case supports a conclusion that the applicants characterization of service is too harsh and as a result inequitable.

4. In view of the foregoing, the characterization of the discharge is inequitable. The analyst recommends 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.

5. The applicant also requested his discharge be upgraded to honorable; however, by violating the Army’s policy not to possess or use illegal drugs, the applicant 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.

6. The applicant expressed his desired for an upgrade of his discharge for the purpose of being able to receive his G.I. Bill benefits. However, the Board does not grant relief for the purpose of gaining G.I. Bill benefits. Further, eligibility for veteran’s benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 3 December 2014 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Board Vote:
Character Change: 4 No Change: 1
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: General, Under Honorable Conditions
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) AR20140001115

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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