IN THE CASE OF:  	

      BOARD DATE:  	3 May 2013

      CASE NUMBER:  	AR20120020442
___________________________________________________________________________

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 the discharge was improper.  The evidence indicates the applicant requested an administrative separation board and was entitled to one because he was being recommended for an under other than honorable conditions discharge at the time of initiation of the separation action.  An administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects the applicant did not receive an administrative separation board and did not waive it either.  Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  




      
      
      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 to upgrade his characterization of service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, that he had requested a court-martial, instead he was discharged.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	1 November 2012
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	9 May 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse) / AR 635-200, paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	B Co, 1st Bn, 38th Infantry Regiment, 4th Bde (SBCT) 
			2ID, Joint Base Lewis-McChord, WA
	f.	Current Enlistment Date/Term:	18 September 2008 / 4 years, 18 weeks
	g.	Current Enlistment Service:	3 years, 7 months, 22 days
	h.	Total Service:	3 years, 11 months, 27 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (000824-001228) / UNC
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B (Infantryman)
	m.	GT Score:	104
	n.	Education:	HS Graduate
	o.	Overseas Service:	Germany, SWA
	p.	Combat Service:	Afghanistan (100704-110427)
	q.	Decorations/Awards:	AAM-2; NDSM; ACM-CS; GWOTSM; ASR; OSR-2
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 24 August 2000, but received an involuntary discharge under Chapter 11, Entry Level Performance and Conduct with an uncharacterized service.  Subsequently, he enlisted in the Regular Army on 18 September 2008, for a period of 4 years and 18 weeks.  He was 18 years old at the time of his initial entry, and 26 years old at his subsequent enlistment and a high school graduate.  He served in Germany and Afghanistan.  He earned two AAMs.  He completed a total of 3 years, 11 months, and 27 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 13 December 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, by reason of misconduct (drug abuse) for wrongfully using cocaine (110923-110930).

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 
 
3.  On 19 December 2011, the applicant consulted with legal counsel and elected consideration of his case by an administrative separation board.  The applicant 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 battalion commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  On 13 March 2012, the brigade commander, also, recommended approval with an under other than honorable conditions discharge; however, on 3 April 2012, by e-mail correspondence, the brigade commander changed the recommended characterization of service to general, under honorable conditions discharge.

4.  On 20 April 2012, the separation authority (GCMCA), approved 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 9 May 2012, with a characterization of service of general, under 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. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record:  IO, command directed, 30 September 2011, cocaine.

2.  Two negative counseling statements dated 3 November 2011, for testing positive during a unit command directed urinalysis.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided copies of his separation documents: his election of rights; acknowledging receipt of his separation notification; notification of separation action being initiated (by the SPCMCA, not the GCMCA); referral and notification of a separation board.



POST-SERVICE ACTIVITY: 

The applicant provided none. 

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.

DISCUSSION AND RECOMMENDATION:

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

2.  After a careful review of all the applicant’s military records, the issues and documents submitted with the application, the discharge appears to be improper.  

3.  The evidence of record confirms that the applicant was notified of the initiation of discharge proceedings under the provisions of Board Procedures, AR 635-200.  The applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and was being recommended for an under other than honorable conditions discharge at the time of initiation of separation action.  An administrative separation board is a right and required under the provisions of Army Regulation 635-200.  The record reflects that the applicant did not receive an administrative separation board and denial of such a board constituted a prejudicial error to the rights of the applicant and as a result the discharge is improper.  

4.  The records show the proper discharge and separation procedures were not followed in this case.  

5.  Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF."  This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review	     Date: 3 May 2013           Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers:  NA 

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

Board Action Directed:
Issue a new DD Form 214:			Yes
Change Characterization to:		Honorable	
Change Reason to:				Secretarial Authority
Change Authority for Separation:		AR 635-200, Chapter 5, Paragraph 5-2
Change RE Code to:			Re-Code 3
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)		AR20120020442



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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