AR20140003596

IN THE CASE OF: Mr.

BOARD DATE: 6 February 2015

CASE NUMBER: AR20140003596
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding 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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions.

2. The applicant states, in effect, while in the military his service was honorable and he always did his job. He states his wife left him and he was forced to leave his home and live in the barracks. Within two weeks, he states she had moved another Soldier into their home. After he found out the Soldiers name and unit, he reported it to his chain of command who he states told him to deal with it. He states, this caused him to break down mentally and emotionally, ruined his career and caused him to make poor decisions. He states, he just wants an opportunity to make his life right and get the help he needs through the Veterans Administration. He contends, in his last month of service he had a MRI conducted on his knee. The doctor told him he would contact him and if he did not hear from him everything was fine. He states, after he was discharged, he received a phone call from the doctor informing him that he had a torn LCL and fissures in his knee. He believes he could have received the treatment he needs had the information not been withheld until after his discharge. He contends he was a good Soldier who was responsible for six junior Soldiers, earned numerous awards and completed several courses to the best of his ability. He regrets the decisions he made and would like an upgrade in order to get the help he needs.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 24 February 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 16 October 2013
d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200,
Chapter 14-12c(2), JKK, RE-4
e. Unit of assignment: B Company, 407th Brigade Support Battalion,
Fort Bragg, NC
f. Current Enlistment Date/Term: 2 November 2011/3 years
g. Current Enlistment Service: 1 year, 11 months, 15 days
h. Total Service: 6 years, 1 month, 25 days
i. Time Lost: 35 days
j. Previous Discharges: DEP, 070810-070822, NA
RA, 070922-111101, HD (13 month extension)
k. Highest Grade Achieved: E-5
l. Military Occupational Specialty: 94A1P, Land Combat Electronic Missile
System Repairer
m. GT Score: 119
n. Education: HS Graduate
o. Overseas Service: SWA
p. Combat Service: Iraq (110518-111123)
q. Decorations/Awards: ARCOM-3, AAM, MUC, ASUA, AGCM, NDSM,
GWOTSM, AFSM, HSM, ICM-CS, NOPDR-2, ASR, OSR
r. Administrative Separation Board: Waived
s. Performance Ratings: Yes
t. Counseling Statements: Yes
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 22 August 2007, for a period of 4 years. He was 20 years old at the time of entry and a high school graduate. He reenlisted in the Regular Army on 2 November 2011, for a period of 3 years, served in Iraq and earned three ARCOMs and a AAM. He completed 6 years, 1 month, 25 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Bragg, NC.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record shows that on 26 August 2013, 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 misconductcommission of a serious offense, for wrongfully using synthetic cannabinoids between 29 March 2013 and 29 April 2013, and being AWOL from 7 July 2013 until 12 August 2013.

2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3. On 29 August 2013, 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 contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and did not submit a statement on his behalf. The applicants chain of command recommended disapproval of his waiver request.

4. On 12 September 2013, the separation authority disapproved the applicants conditional waiver and directed appointment of an administrative separation board.

5. On 19 September 2013, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, and unconditionally waived consideration of his case by an administrative separation board. 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.

6. On 26 September 2013, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of under other than honorable conditions. The applicant was directed to be reduced to the lowest enlisted grade.
7. The applicant was discharged from the Army on 16 October 2013, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), a Separation Program Designator code (SPD) of JKK and an RE code of 4.

8. The applicants record of service indicates 35 days of time lost for being AWOL from 7 July 2013 until his return on 11 August 2013.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. There is one positive urinalysis reports contained in the record:

PO, Probable Cause, 29 April 2013, synthetic cannabinoids

2. A memorandum from the DOD Armed Forces Medical Examiner System, Dover AFB, DE, dated 29 May 2013, reflects the applicant tested positive for synthetic cannabinoids.

3. Article 15, dated 27 June 2013, for wrongfully using synthetic cannabinoids between 29 March 2013 and 29 April 2013. The punishment consisted of a reduction to the grade of E-4, forfeiture of $500 pay per month for two months, and 45 days of extra duty and restriction (FG).

4. A negative counseling statement dated 10 June 2013, for a positive drug test, initiation of separation action, field grade (FG) Article 15, and adverse action flag.

5. Two DA Forms 4187 (Personnel Action), dated 10 July 2013 and 12 August 2013, reflects the applicants duty status changed from present for duty (PDY) to AWOL and AWOL to PDY.

6. One NCOER covering the period of 10 November 2011 to 9 November 2012. The applicant was rated as Fully Capable and received 2/1 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 15 February 2014, a DD Form 214, a radiological examination report, dated 5 February 2014, a DD Form 214 worksheet, two DA Forms 1059 with completion certificates, dated 16 September 2010 and 13 June 2012, seven certificates of training for completion of various military courses, an honor graduate certificate, dated 27 March 2008, a certificate of affiliation, dated 27 March 2008, a airborne course diploma, dated 16 May 2008, an ARCOM certificate, dated 6 October 2011, a DA Form 638 (front side only), dated 6 September 2011, and a AAM certificate, dated 15 March 2010.

POST-SERVICE ACTIVITY:

The applicant did not provide any in support of his 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, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant’s discharge to general, under honorable conditions for the following reasons:

a. Length and quality of service: The applicant served 6 years, 1 month, 25 days, committing misconduct in the first year of his second enlistment, thus the preponderance of his service was honorable.

b. The record confirms the applicant received several awards, specifically three ARCOMs, one of which was for a tour in combat and an AAM, for a humanitarian mission. As of note, the applicant received one ARCOM seven months prior to his discharge.

c. The record is void of any evidence the applicant was referred to the Army Substance Abuse Program (ASAP) for evaluation within 5 days of notification that he had failed a urinalysis test or that he was afforded the opportunity for rehabilitation prior to his discharge.

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 may now be too harsh and as a result inequitable.

4. The available record is void as to the applicant being referred to the Army Substance Abuse Program (ASAP) for evaluation within five days of notification that he had failed a urinalysis test or that he was afforded the opportunity for rehabilitation prior to his discharge.

5. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant 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. This action entails restoration of grade to E-4/Specialist.

BOARD DETERMINATION AND DIRECTED ACTION

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation, the Board determined the discharge to be proper and equitable and voted to deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 6 February 2015 Location: Washington, DC

Did the Applicant Testify, NA Counsel: None Witnesses/Observers: NA

Board Vote:
Character Change: 1 No Change: 4
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) AR20140003596

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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