IN THE CASE OF:  	

      BOARD DATE:  	12 August 2013

      CASE NUMBER:  	AR20120016961
___________________________________________________________________________

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 that follows, the Board determined that the applicant's length and quality of his service were not significantly meritorious to overcome the seriousness of the misconduct that caused his separation from the Army, and as a result the discharge was found to be proper and equitable.  The Board voted to deny the relief requested because it found the nature of the applicant's misconduct of having received two Article 15s does not warrant the award of an honorable characterization of service.  



      
      
      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 other than honorable conditions discharge to honorable.

2.  The applicant states, in effect, that an upgrade of his discharge would allow him to be able to be commissioned as a Chaplain in the Army.  He contends he was unjustly discharge for the following reasons:

	a.  discharge was inequitable because it was based on one isolated period

	b.  discharge misrepresented and did not take into account all circumstances

	c.  he was discharge with no prior knowledge of his personal conduct or character as a Soldier in 9 years of service

	d.  he was not provided with help or rehabilitation by his command in coping with his issues

	e.  he was treated different from the active duty Soldiers because he was a reservist 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			7 September 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				22 April 2004
d. Reason/Authority/SPD/RE Code:	  	Misconduct, Chapter 14, paragraph 14-12c(2) 								JKK, RE-4
e. Unit of assignment:				Det 14, 4223rd USAH AR, Fort Carson, CO
f. Current Enlistment Date/Term:		28 March 2003/OAD, 365 days
g. Current Enlistment Service:		1 year, 0 months, 25 days
h. Total Service:				10 years, 4 months, 3 days
i. Time Lost:					None
j. Previous Discharges:			USAR-931220-950531/NA											IADT-950601-950922/UNC										USAR-950923-011212/HD											USAR-011213-030327/NA											    (Concurrent Service)
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		91M10, Hospital Food Service Specialist
m. GT Score:					105
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			ARCAM-3, NDSM-2, GWOTSM, AFRM-w/M 								Device
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				Yes, 8 June 2011, Denied
SUMMARY OF SERVICE:		

The applicant enlisted in the United States Army Reserve on 20 December 1993.                  On 12 December 2001, he reenlisted for a period for 6 years.  He was ordered to active duty 28 March 2003.  At the time of entry on active duty he was 26 years old.  His record shows he has earned three ARCAM's.  He was assigned to Fort Carson, CO when separation action was initiated against him.  He completed a total of 10 years, 4 months, and 3 days of total military service. 

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, documents submitted by the applicant indicate that on 2 February 2004, the commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs for testing positive for marijuana on 16 September 2003.

2.  Based on the above misconduct, the commander recommended that the applicant be retained in the Army; he was advised of his rights.

3.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, and did not submit a statement on his own 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 a general, under honorable conditions discharge.

4.  On 23 February 2004, the separation authority referred the applicant's case to an administrative separation board to determine whether he should be involuntarily discharged due to misconduct-abuse of illegal drugs.

5.  On 30 March 2004, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and did not submit a statement on his behalf.  

6.  On 2 April 2004, the separation authority after having viewed the applicant's unconditional waiver of his rights to a hearing before an administrative separation board, approved the applicant's separation under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs with a characterization of service of under other than honorable conditions.

7.  The applicant was discharged from the Army on 22 April 2004, 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, with a Separation Program Designator code (SPD) of JKK and an RE code of 4.

8.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The applicant's prior board review indicates he received a field grade Article 15 on 29 October 2003, for the use of a controlled substance (marijuana).  His punishment consisted of reduction to E-3; forfeiture of $764.00 pay per month for 2 months, (one month suspended), extra duty for 45 days, and restriction for 30 days.  A copy of the Article 15 document was not found in the available record.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted a DD Form 293, copy of discharge packet, a self-authored statement detailing events leading up to his discharge, dated 15 May 2012, certificate of promotion, certificate for completion of basic training, hazardous waste operation and emergency response, certificate of appreciation, school records, request for conditional release, dated 11 April 2001 and 16 April 2002 and supporting documents, orders for active duty, dated 26 March 2003, letter from the Commanding General of the US Army Medical Command, dated 15 May 2003, letters of recommendation/reference, DA Form 705, memorandum for central issue facility, report of medical examination, dated 11 October 2001, report of medical history, dated 30 October 2003, copy of enlistment contract, dated 13 December 2001, questionnaire regarding medical treatment, dated 18 December 2003, report of medical assessment, dated 30 October 2003, developmental counseling form dated 8 September 2003, and a copy of a DD Form 214 from a prior period of service.

POST-SERVICE ACTIVITY: 

The applicant states since his discharge his life has changed 180 degrees; he has started going to AA groups, helping other that were struggling and overcoming addictions, he is taking online classes to receive a degree in ministry with a GPA of 4.0 and in biblical leadership.

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, misconduct (drug abuse).

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

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  

2.  After examining the applicant’s 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. The unit commander recommended the applicant be retained in the Army.

      b. Length and quality of service:  The applicant served 10 years and 4 months and 3 days of total service.

	c. The record confirms the applicant received several awards, specifically 3 ARCAMs.

3.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 

4.  The applicant contends that a change in the reason for the discharge would allow for his reentry into the Army.  However, 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 drug offenses.  The regulation further stipulates that no deviation is authorized.  

5.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.  

6. The applicant contends his discharge was based on one isolated incident of misconduct.  Although an isolated incident, the discrediting entry 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 an isolated incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

7.  Furthermore, 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 his service below that meriting an honorable discharge.  

8.  The applicant contends his command did not provide him with help of rehabilitation.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance.

9.  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.  

10.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial 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-3/PFC.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance	   Date: 12 August 2013   	Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: No


DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted the following additional documents:

	Separation documents (20 pages)

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

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:		No Change
Change RE Code to:			No Change
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)		AR20120016961



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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