IN THE CASE OF:  	Mr.

      BOARD DATE:  	26 April 2013

      CASE NUMBER:  	AR20120022402
___________________________________________________________________________

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 that follows, the Board noted that the government introduced a document into the discharge process revealing the applicant was enrolled in the Army Substance Abuse Program (ASAP) for substance abuse.  This is limited use information as defined in AR 600-85.  Use of this information mandates award of an honorable discharge.  Accordingly, the Board voted to change the characterization of service to honorable.  The Board found the reason for discharge was fully supported by the record and voted not to change it.  




      
      
      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 has been in a rehabilitation program for close to two months and he would like to utilize his Post 9/11 GI Bill so he can further his education.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 December 2012		
b. Discharge Received:  		General, Under Honorable Conditions		
c. Date of Discharge: 			18 May 2012				
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4        
e. Unit of assignment:			Bravo Company, 702d Brigade Support Battalion,						Joint Base Lewis-McChord, Washington
f. Current Enlistment Date/Term:	23 February 2010, 3 years, 25 weeks	
g. Current Enlistment Service:	2 years, 2 months, 26 days
h. Total Service:			2 years, 2 months, 26 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	91B10, Wheeled Vehicle Mechanic
m. GT Score:				95
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:		
	
The applicant enlisted in the Regular Army on 23 February 2010, for a period of 3 years, 25 weeks.  He was 18 years old at the time of entry and a high school graduate.  He completed    2 years, 2 months, and 26 days of active duty service.




SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 17 April 2012, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, chapter 14-12c(2), misconduct-abuse of illegal drugs; specifically for wrongfully using marijuana (111107 - 111207).

2.  Based on the above misconduct, the commander recommended a general, under honorable conditions discharge.

3.  On 18 April 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did 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 4 May 2012, the separation directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 18 May 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 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 which reflects, RO, Rehabilitation, 7 December 2011.

2.  An Article 15, dated 26 January 2012, wrongful use of marijuana (111107 – 111207).  The punishment consisted of reduction to the grade of E-1, forfeiture of $745 per month for two months (suspended), to be automatically remitted if not vacated before (120726), extra duty and restriction for 45 days, (FG) 

3.  A developmental counseling form dated 12 March 2012, for being chaptered out of the Army.

EVIDENCE SUBMITTED BY THE APPLICANT:

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

POST-SERVICE ACTIVITY: 

The applicant states he has been in a rehabilitation program for two months.  

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.  After a careful review of all the applicant’s military records, the issue and documents submitted with the application, the characterization of service appears to be improper.  

2.  The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 7 December 2011, which was coded RO (Rehabilitation) and that it was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant’s rehabilitation program.  Use of this information mandates award of an honorable characterization of service.  

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

4.  Additionally, the record shows that on 26 January 2012, the applicant accepted non-judicial punishment for wrongfully using marijuana based on the above mentioned urinalysis.  There is no indication in the chapter paperwork that the command recognized that the urinalysis could not be used as the basis for the Article 15.  Further, there is no indication that the command believed the urinalysis was improperly coded RO.  
5.  It appears the urinalysis was properly coded RO, as such the Article 15 was improperly based on the limited use evidence. 

6.  Therefore, the characterization of service being improper, recommend the Board grant full relief by upgrading the applicant’s characterization to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.   

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  Date:  26 April 2013        Location: Washington, DC

Did the Applicant Testify?  N/A 

Counsel: None

Witnesses/Observers: N/A 

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

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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)		AR20120022402



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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