IN THE CASE OF:	  

		BOARD DATE:	    19 November 2013

		DOCKET NUMBER:  AR20130004944 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge to an honorable discharge and a change to his narrative reason for separation.

2.  The applicant states his company commander had a grudge against him and he was discharged without being provided professional help for his problems.  He is experiencing personal hardship as a result of his discharge.

3.  The applicant provides a copy of an Army Discharge Review Board (ADRB) memorandum, dated 28 February 2013, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 August 1998 for a period of 
4 years.  He was awarded military occupational specialty 11B (Infantryman).

2.  The applicant served overseas in Germany from 4 February 1999 to
31 January 2001.

	a.  He was advanced to the rank/grade of private (PV2)/E-2 on 6 February 1999 and reduced to private (PV1)/E-1 on 15 July 1999.

	b.  He was promoted through the ranks and attained the rank/grade of specialist (SPC)/E-4 on 6 October 2000.


3.  On 2 February 2001, he was reassigned to Company C, 2nd Battalion, 
22nd Infantry, 10th Mountain Division (Light Infantry), Fort Drum, NY.

4.  On 30 January 2002, the applicant received nonjudicial punishment (NJP) for:

* wrongfully using  a 1a schedule III controlled substance (methylenedioxy-methamphetamine) on or about 21 November 2001
* failing to obey a lawful order issued by his commanding officer to submit a urine specimen on 21 November 2001

5.  On 11 February 2002, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, for commission of a serious offense.

	a.  The reasons for the commander's proposed action were the applicant tested positive on a command-directed urinalysis on 21 November 2001 and attempted to submit an altered specimen.  When directed to give a second sample, the results tested positive for the presence of methylenedioxy-methamphetamine.

	b.  The applicant was advised of his rights and the separation procedures involved.

6.  The applicant consulted with legal counsel and he was advised of the rights available to him.

	a.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a discharge under other than honorable conditions was issued to him.

	b.  The applicant also acknowledged he understood that if he received a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and States laws, and that he may expect to encounter substantial prejudice in civilian life.

	c.  He waived personal appearance before an administrative separation board contingent upon receiving a characterization or description of service no less favorable than a general, under honorable conditions discharge.

	d.  He submitted a statement from his squad leader in his behalf.


	e.  He requested representation by military counsel.

	f.  The applicant and his counsel placed their signatures on the document.

7.  On 12 February 2002, the applicant's company commander recommended approval of the applicant's separation for misconduct based on commission of a serious offense.  The commander's recommendation shows the applicant completed a mental status evaluation and a medical examination.

8.  The intermediate commanders recommended approval of the applicant's separation with an under other than honorable conditions discharge.

9.  On 4 March 2002, the separation authority disapproved the applicant's request for conditional waiver and directed the applicant appear as a respondent before an administrative separation board.

10.  On 11 March 2002, after having been advised by consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense, that his request for conditional waiver was denied on 4 March 2002, and that he was entitled to have his case heard by an administrative separation board, the applicant unconditionally waived consideration of his case by an administrative separation board.

	a.  He declined to submit statements in his own behalf.

	b.  The applicant and his counsel placed their signatures on the document.

11.  On 18 March 2002, the separation authority approved the applicant's unconditional waiver and withdrew referral of his case to an administrative separation board.  He approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c and directed the applicant be discharged for misconduct based on commission of a serious offense with an under other than honorable conditions discharge.  He also reduced the applicant to the lowest enlisted grade.  Accordingly, the applicant was discharged on 22 March 2002.  He completed 3 years, 7 months, and
17 days of creditable active service.

12.  On 1 May 2011, the applicant petitioned the ADRB for an upgrade of his discharge.

13.  On 21 December 2011, the applicant was notified that the ADRB determined that relief was warranted and voted to grant partial relief in the form of upgrading 


his discharge to general, under honorable conditions.  The ADRB also determined that the reason for discharge was both proper and equitable and voted not to change it.

14.  The applicant was issued a new DD Form 214 showing he was discharged on 22 March 2002 with an under honorable conditions (general) discharge.  It also shows in:

* item 25 (Separation Authority):  Army Regulation 635-200, 
paragraph 14-12c(2)
* item 26 (Separation Coded):  JKK
* item 28 (Narrative Reason):  Misconduct

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, frequent incidents of a discreditable nature with civil or military authorities, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	b.  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.

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents) shows that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty and is prepared for Soldiers upon release from active duty, discharge, retirement, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, separation approval authority 


documentation, separation orders, or any other document authorized for filing in the official military personnel record.

	b.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It shows for:

		(1)  item 25:  enter the regulatory or other authority cited in directives authorizing separation;

		(2)  item 26:  enter the proper Separation Program Designator (SPD) code representing the specific authority for separation; and

		(3)  item 28:  enter the narrative reason for separation as shown in Army Regulation 635-5-1 (SPD Codes) based on the regulatory or other authority.

17.  Army Regulation 635-5-1 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 SPD code "JKK" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct (drug abuse).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to fully honorable and the narrative reason for his discharge should be changed because he was discharged without being provided professional help for his problem.

2.  The evidence of record shows the applicant's commander initiated separation action against the applicant for testing positive for the drug methylenedioxy-methamphetamine, and willful disobedience of a lawful order of a commissioned officer.  He could have referred himself for help with his drug problem.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Additionally, the DD Form 214 issued as a result of ADRB's decision shows the correct separation authority, narrative reason, separation code, and character of service.  Therefore, the reason for his separation and characterization of his service were appropriate and equitable.


4.  The evidence of record shows the applicant received NJP for wrongfully using methylenedioxy-methamphetamine and willfully disobeying the lawful order of a commissioned officer.  Thus, the applicant's record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130004944



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ABCMR Record of Proceedings (cont)                                         AR20130004944



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