IN THE CASE OF:  	

      BOARD DATE:  	12 April 2013

      CASE NUMBER:  	AR20120021643
___________________________________________________________________________

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.
 
2.  The applicant states, in effect, that he believes his discharge should be upgraded because he was being the best Soldier he could be and made a simple mistake.  All he ever wanted to do was fight for and protect his country.  Although he made a mistake, he wanted to prove that he was supposed to be there and do his part.  He wasn’t given the second chance that he knows he deserved.  All he is asking for is an upgrade, so he can receive his benefits, since he joined and took a risk during the time of war.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 November 2012	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			28 February 2011 	
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, paragraph 						14-12c(2), JKK, RE-4	
e. Unit of Assignment:			602d Maintenance Company, 49th Movement Control 					Battalion, Fort Hood, TX	
f. Current Enlistment Date/Term:	3 February 2009, 04 years and 00 weeks
g. Current Enlistment Service:	02 years, 00 months, 28 days
h. Total Service:			02 years, 00 months, 28 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	91K10, Armament Repairer
m. GT Score:				113
n. Education:				HS Grad	
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
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 3 February 2009, for a period of 04 years.  He was 25 years old at the time of entry and a high school graduate.  He received his training at Fort Sill, Oklahoma, and was assigned to Fort Hood, Texas.  He had no special awards or meritorious achievements.  


SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 18 November 2010, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse), specifically for testing positive for cocaine (between 100528-100601).

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

3.  On 21 January 2011, the applicant consulted with legal counsel, conditionally waived an administrative separation board even though the record doesn’t show he was notified that he could receive other than honorable conditions discharge or had more than 6 years of service, 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 7 February 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 separated on 28 February 2011, under Army Regulation 635-200, Chapter 14-12c(2), with a general, under honorable conditions discharge, a SPD code of JKK, and a RE code of 4.               

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is one positive urinalysis report contained in the record coded as IR, Inspection Random, 1 June 2010, cocaine.

2.  Two negative counseling statements dated 16 June 2010 and 15 October 2010, for a positive urinalysis and a request for involuntary separation notification from his commander.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and DD Form 214. 


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 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 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 (cocaine), 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 he made a simple mistake that led to his discharge.  Although a simple mistake, 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 a simple mistake provides the basis for a characterization.  

5.  The applicant also contends that if he would have been given the second chance that he knows he deserved he could have stayed in the Army.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, that 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.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.

6.  Additionally, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

8.  Therefore, 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:  12 April 2013             Location: Washington, DC

Did the Applicant Testify?  No

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: 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)		AR20120021643



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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