IN THE CASE OF:  	

      BOARD DATE:  	24 June 2013

      CASE NUMBER:  	AR20120012193
___________________________________________________________________________

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 that the discharge was both 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 an upgrade of his discharge from general, under honorable conditions to honorable, a change to his reentry code, and to the narrative reason for separation.  

2.  The applicant states, in effect, that he made a mistake by smoking marijuana.  He loved being a Soldier and since his discharge he has had difficulties adjusting to civilian life.  He would like to have a second chance to prove it.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 July 2012
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			4 May 2011
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2)						JKK, RE-4        
e. Unit of assignment:			B Co, 210th Bde Support Battalion, Fort Drum, NY
f. Current Enlistment Date/Term:	18 November 2009, 3 years and 28 weeks
g. Current Enlistment Service:	1 year, 5 months, 17 days
h. Total Service:			1 year, 5 months, 17 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	91B10, Wheel Vehicle Mechanic
m. GT Score:				97
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
On 18 November 2009, the applicant enlisted in the Regular Army for a period of 3 years and 28 weeks.  He was 20 years old at the time of entry and was a high school graduate.  He was serving at Fort Drum, NY when his discharge was initiated.  His record does not contain any meritorious achievements or acts of valor.  


SEPARATION FACTS AND CIRCUMSTANCES

1.  The service record indicates that on 8 April 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct-abuse of illegal drugs, specifically for wrongfully using marijuana on divers occasions.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  

3.  On 14 April 2011, the applicant declined legal counsel, was advised of the impact of the discharge action and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge.  

4.  On 21 April 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 4 May 2011, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with a SPD Code of JKK, and a RE code of 4.

6.  The service record does not contain any evidence of time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A field grade Article 15 issued on 2 December 2010, for wrongfully using marijuana (100914-101013).  His punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $723.00 per month for 2 months, 45 days of extra duty and restriction, and an oral reprimand (FG).

2.  A field grade Article 15 issued on 8 March 2011, for wrongfully using marijuana (101012-101110).  His punishment consisted of forfeiture of pay in the amount of $733.00 per month for 2 months, 45 days of extra duty and restriction, and an oral reprimand (FG).

3.  The record contains three positive urinalyses reports as follows:

	a. 4 January 2010, coded as IU, Inspection Unit, for amphetamines
	b. 13 October 2010, coded as IR, Inspection Random, for marijuana
	c. 10 November 2010, coded as PO, Probable Cause, for marijuana

4.  Two negative counseling statements dated 26 October 2010 and 10 November 2010, for wrongfully using an illegal substance and for being positive on a urinalysis.



EVIDENCE SUBMITTED BY THE APPLICANT 

An online application.

POST-SERVICE ACTIVITY: 

The applicant states he is having a real hard time adjusting to civilian life.

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 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.  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 Soldier’s separation specifically allows such characterization.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) 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 the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), for misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "JKK" will be assigned a RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for separation was carefully considered.  However, after examining the applicant’s service record and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.  

2.  The record confirms that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel; it brought discredit on the Army and was prejudicial to good order and discipline.  The applicant, by violating the Army's policy not to possess or use illegal drugs, 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 service below that meriting an honorable discharge.  The applicant’s service was marred by two field grade Articles 15 for wrongfully abusing illegal drugs.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4. The applicant contends that his discharge was inequitable because it was based on an isolated incident.  However, the record shows several incidents of drug abuse.  These incidents constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by one or more incidents of misconduct provides the basis for a characterization.  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 applicant’s discharge is commensurate with his overall service record.  

5.  The applicant requested the narrative reason for the discharge be changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

6.  The applicant also requested a second chance to serve again.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE Code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

7.  Therefore, the reason for discharge and the 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:  24 June 2013	Location: Washington, DC

Did the Applicant Testify?   No

Counsel:  None			

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 RE Code to:		No Change
Grade Restoration to:		NA
Change Authority for Separation:	No Change
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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20120012193

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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