IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 April 2013

      CASE NUMBER:  	AR20120021525
___________________________________________________________________________

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 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 general, under honorable conditions discharge to honorable and change in the narrative reason.
 
2.  The applicant states, in effect, that his discharge was inequitable because it was based on one isolated incident with over 45 months of service and no other adverse action.  The procedures throughout the process of his discharge were performed illegally and his rights were violated.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 November 2012	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			10 July 2012	
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, paragraph 						14-12c(2), JKK, RE-4	
e. Unit of Assignment:			977th Military Police Company, 97th Military Police 						Battalion, United States Army Garrison, Fort Riley, KS	
f. Current Enlistment Date/Term:	31 March 2008, 5 years 
g. Current Enlistment Service:	4 year, 3 months, 10 days
h. Total Service:			4 year, 3 months, 10 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	31B10 Military Police
m. GT Score:				97
n. Education:				GED	
o. Overseas Service:			SWA
p. Combat Service:			Afghanistan (100423-110422)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, ACM-w/CS-2, GWOTSM, 						ASR, OSR, NATO MDL
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 31 March 2008, for a period of 5 years.  He was 18 years old at the time of entry and had a high school equivalency (GED).  He was serving at Fort Riley, KS when his discharge was initiated.  He was awarded an ARCOM and an AGCM.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 13 June 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c(2), for misconduct (drug abuse), specifically for testing positive for “K2”, a schedule 1 controlled substance (120210).

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

3.  On 22 June 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated he would not submit a statement in 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 with a general, under honorable conditions discharge.  

4.  On 27 June 2012, 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 separated on 10 July 2012, under Army Regulation 635-200, Chapter 14-12c(2), with a general, under honorable conditions discharge, an SPD code of JKK, and an RE code of 4.               

6.  The applicant’s record does not contain any AWOL time.   

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is one positive urinalysis reports contained in the record coded as PO, Probable Cause, 10 February 2012, K2.
 
2.  One negative counseling statement dated 9 May 2012, for a positive urinalysis.

3.  The applicant’s record contains a Field Grade Article 15, dated 30 May 2012.  The applicant received the Article 15 for wrongfully using “K2”, a schedule I controlled substance (120210).
The punishment imposed consisted of a reduction to E-1, forfeiture of $745.00 pay per month for two months, extra duty and restriction for 45 days.





EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, DD Form 214, and a background check memorandum for urinalysis test covering the period 29 July 2008 through 18 May 2012.

POST-SERVICE ACTIVITY: 

None provided with the 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 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, for 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.  However, after examining the applicant’s record of service, his military records, the documents, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 
 
2.  The record confirms 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 (K2), 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.

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 the event that led to his discharge of using K2 was an isolated event in 45 months of service.  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.  

5.  The applicant also contends that the procedures throughout the process of his discharge were performed illegally and his rights were violated.  However, the applicant's positive urinalysis test was a result of the command’s probable cause urine testing program to maintain good order and discipline within the unit.  Such testing has been upheld by civilian and military courts as lawful and does not violate the US Constitutional protections against unreasonable search and seizure under the Fourth Amendment, self-incrimination under the Fifth Amendment, nor does it violate Article 31 of the Uniform Code of Military Justice.  In addition, military orders to produce a urine sample have been upheld in court as both legal and lawful and essential to military discipline.

6.  The applicant has requested a change to the reentry code in order to rejoin the Service.  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.  The records show the proper discharge and separation authority procedures were followed in this case.  There was no evidence of arbitrary or capricious actions by the applicant’s command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   

8.  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 April 2013      Location: Washington, DC

Did the Applicant Testify?  N/A

Counsel: None

Witnesses/Observers: NA

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:	N/A
Change RE Code to:		N/A
Grade Restoration to:		N/A
Other:					N/A














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)		AR20120021525



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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