AR20140001297

IN THE CASE OF: Mr.

BOARD DATE: 21 January 2015

CASE NUMBER: AR20140001297
___________________________________________________________________________

Board Determination and Directed Action

1. 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 length and quality of the applicant’s service, to include his combat service, and the medical circumstances surrounding the discharge (i.e., the record shows the applicant was diagnosed by the VA with PTSD, and he hurt his back while deployed to Iraq. He was prescribed medication for treatment; and he was subsequently placed on a permanent L3 profile), and as a result it is inequitable.

2. 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 further 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 conditions to honorable.

2. The applicant states, in effect, he was suffering from severe Post Traumatic Stress Disorder (PTSD) and physical pain when he was discharged. He was on prescription narcotics and not himself when he used methamphetamines; he was told methamphetamines would help with depression.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 13 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 12 January 2006
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 Company, 70th Engineer Battalion, Fort Riley, KS
f. Current Enlistment Date/Term: 5 March 2003, 3 years
g. Current Enlistment Service: 2 years, 10 months, 7 days
h. Total Service: 2 years, 10 months, 7 days
i. Time Lost: 1 day
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 21B10, Combat Engineer
m. GT Score: 99
n. Education: 1 year of college
o. Overseas Service: Southwest Asia
p. Combat Service: Iraq x 2 (030708-031217), (050131-050621)
q. Decorations/Awards: NDSM, ICM, GWOTEM, GWOTSM, ASR, OSR-2, VUA
r. Administrative Separation Board: No
s. Performance Ratings: No
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 5 March 2003, for a period of 3 years. He was 30 years old at the time of entry with one year of college. He was trained in and awarded military occupational specialty (MOS) 21B10, Combat Engineer. His record also shows he served two combat tours, he did not earn any awards for acts of valor or meritorious achievements; and he achieved the rank of SPC/E-4. He was serving at Fort Riley, KS when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 3 January 2006, the applicant was charged with the following offenses:

a. without authority, failing to go to his appointed place of duty on divers occasions (051214),

b. willfully disobeying a lawful command from CPT D, his superior commissioned officer x 2 (051213, 051231),

c. wrongfully possessing an unknown quantity of methamphetamine (051215),

d. wrongfully using methamphetamine x 2 (051211-051214) and (051129-051201), and

e. breaking restriction (051231).

2. On 9 January 2006, 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 veterans benefits. The applicant did not submit a statement in his own behalf. However, he submitted a statement from his wife and mother on his behalf. The applicants chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.

3. On 10 January 2010, 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 12 January 2006, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4.

5. The applicants record of service indicates 1 day of time lost for being AWOL from 30 November 2005 until 30 November 2005; mode of return unknown.

6. Of note the record contains an ASAP registration form dated 15 November 2005, that purports to be a self-referral. However, the form was written after the applicant had tested positive for a number of drugs. The UA results are annotated on the form. The applicant told the doctor who performed the medical review he tested positive for these drugs because they had been prescribed, but the records in the separation file indicate the applicant never produced the prescriptions to support their use. A “self-referral” after notice of a UA is not protected by limited use.
EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. An Article 15, dated 14 December 2005, for without authority, failing to go at the time prescribed to his appointed place of duty x 2 (051201, 051129); making a false official statement to SFC N (051129); and wrongfully using amphetamines, d-methamphetamines, and methamphetamines (051009-051011); the punishment consisted of a reduction to E-1, forfeiture of $617 pay for two months, extra duty and restriction for 45 days, (FG).

2. The record contains two DA Forms 4187 (Personnel Action), both dated 30 November 2005, showing the applicants present for duty and AWOL dates.

3. He received several negative counseling statements dated between 1 December 2005 and 3 January 2006 for wrongfully using and possessing a controlled substance, being AWOL, failing to report numerous times, driving with a suspended license, and breaking restriction.

4. The record contains two positive urinalysis reports, one coded IR (Inspection Random), dated 11 October 2005, for amphetamines, d-methamphetamines, methamphetamines, oxycodone, oxymorphone and one coded IO (Inspection Other), dated 1 December 2005, for amphetamines, d-methamphetamines, methamphetamines.

5. A DA Form 8003, Army Substance Abuse Program (ASAP) Enrollment form, dated 15 November 2005, indicating the applicant self referred to ASAP.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided two DD Forms 293, letter, state of Colorado , division of Veterans Affairs, VA Form 21-22 (Appointment of Veterans Service Organization as Claim Representative), DD Form 214, letter, Veterans Village of San Diego, self-authored statement (four pages), four DA Forms 3349 (Physical Profile), five support statements, spouses letters to Senator R (four pages) and Congressman M (one page), 3rd Brigade Commanders letter to Congressman M, second deployment to Iraq timeline (two pages), x-ray results, chronological record of medical care documents (six pages), and patient prescription information leaflet (two pages).

POST-SERVICE ACTIVITY:

The applicant did not provide any information with his 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 individuals admission of guilt.
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.

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. 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 his characterization of service was carefully considered.

2. After examining the applicants record of service, his military records, 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 conditions for the following reasons:

a. Length and quality of service: The applicant served 2 years, 10 months, and 7 days of his initial contract of 3 years, thus the preponderance of his service was honorable.

b. The record confirms the applicant served two combat tours in Iraq.

c. Medical circumstances surrounding the discharge (i.e., the record shows the applicant was diagnosed by the VA with PTSD, and he hurt his back while deployed in Iraq. He was prescribed medication for treatment; and he was subsequently placed on a permanent L3 profile).

3. This recommendation was 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 was too harsh and as a result, it is inequitable.

4. In view of the foregoing, the characterization of the discharge is inequitable and the analyst recommends the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.

5. The applicant contends he was suffering from severe PTSD and physical pain when he was discharged. The service record contains no evidence of a PTSD diagnosis and the applicant did not submit any evidence to support the contention he was suffering from severe PTSD or that the discharge was the result of any medical condition.

6. The applicant further contends he was on prescription narcotics and not himself when he used methamphetamines; he was told methamphetamines would help with depression. He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.

7. Therefore, the reason for discharge was fully supported by the record and remains both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 21 January 2015 Location: Washington, DC

Did the Applicant Testify: NA Witnesses/Observers: NA

Counsel: Yes [redacted]

Board Vote:
Character Change: 5 No Change: 0
Reason Change: 0 No Change: 5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214: Yes
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) AR20140001297

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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