AR20140001213

IN THE CASE OF: Mr.

BOARD DATE: 7 January 2015

CASE NUMBER: AR20140001213
___________________________________________________________________________

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 to be 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 his under other than honorable conditions discharge be upgraded to honorable.

2. The applicant states, in effect, he was self medicating after surgery to help ease the pain in his left leg and he was not given medication to help with the pain.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 10 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 8 October 2013
d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 635-200, Chapter 10, KFS, RE-3
e. Unit of assignment: Headquarters & Headquarters Company, 2nd
f. Brigade Special Troops Battalion (Rear)
(Provisional), 2nd Brigade Combat Team (Rear) (Provisional), Fort Drum, NY
g. Enlistment Date/Term: 11 October 2011, 3 years, 28 weeks
h. Current Enlistment Service: 1 year, 11 months, 28 days
i. Total Service: 1 years, 11 months, 28 days
j. Time Lost: None
k. Previous Discharges: None
l. Highest Grade Achieved: E-3
m. Military Occupational Specialty: 91B10, Wheeled Vehicle Mechanic
n. GT Score: 101
o. Education: HS Graduate
p. Overseas Service: None
q. Combat Service: None
r. Decorations/Awards: NDSM, GWOTSM, ASR
s. Administrative Separation Board: N/A
t. Performance Ratings: None
u. Counseling Statements: None
v. Prior Board Review: No
SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 11 October 2011, for a period of 3 years and 28 weeks. He was 26 years old and a high school graduate. His record indicates he served for 1 year, 11 months, and 28 days. The record documents no acts of valor or significant achievement.

SEPARATION FACTS AND CIRCUMSTANCES:

1. On 11 September 2013, court-martial charges was preferred against the applicant for violating Article 112 x 3 of the Uniform Code of Military Justice (UCMJ); specifically for wrongfully using marijuana on divers occasions between on or about (130630-130731); wrongfully using oxycodone between on or about (120803-120904), and wrongfully using oxymorphone on or about (120803-120904).

3. On 10 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.

4. 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 did not submit a statement in his own behalf.

5. The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.

6. On 25 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 an under other than honorable conditions discharge certificate.

7. On 8 October 2013, the applicant was discharged accordingly. The DDForm214 (Report of Separation from Active Duty) he was issued shows he completed a total of 1 year, 11 months, and 28 days of creditable active military service.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. There are two positive urinalysis reports contained in the record: IU, Unit Sweep,
4 September 2012, Oxycodone and Oxymorphone, IR, Inspection Random, 31 July 2013, marijuana

2. A CID Report of Investigation dated 26 August 2013, that indicates the applicant was the subject of an investigation for wrongfully using marijuana.

3. A negative counseling statement dated 15 August 2013, for testing positive on a urinalysis for marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant did not provide any with the application.

POST-SERVICE ACTIVITY:

The applicant did not provide any with the application.

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.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of his discharge was carefully considered. However, after examining the applicants record of service and the issue 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 offenses 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 applicant contends he was self medicating after surgery to help ease the pain in his left leg and he was not given medication to help with the pain. The service record does not support the applicants contention, and no evidence to support it 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. While the applicant may believe his self medicating after surgery was to help ease the pain in his left leg and he was not given medication to help with the pain was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from his situation through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct.

4. 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. The character of the applicants discharge is commensurate with his overall service record.

5. Therefore, the reason for the discharge 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: 7 January 2015 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) AR20140001213

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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