IN THE CASE OF:  	

      BOARD DATE:  	10 April 2013

      CASE NUMBER:  	AR20120022413
___________________________________________________________________________

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 from his general, under honorable conditions discharge to a honorable characterization of service. 

2.  The applicant states, in effect, that he feels his discharge is inequitable. His commander stated that she was going to keep him in and let him finish his enlistment; however, he would be punished and loose his specialist and complete 40 days of extra duty.  His commander was then transferred to another unit; and the new commander finished the punishment processing.   After losing his rank and completing 40 days of extra duty, he found out that he was going to be discharged as well.  He was very upset as it was his first offense and he had talked to the first sergeant and the previous commander and they had agreed to let him stay in and give him another shot.  He was a very hard worker that made a stupid decision.  He feels that he at least should get an honorable discharge so that he can go to school or be able to rejoin the service.  He loved being in the US Army and would take back the mistake if he could.  He wanted to prove to the higher enlisted and his commander that it was just a simple mistake.  He feels he fulfilled his first agreement of punishment; however, he over punished because of the fact a new commander came to his unit.  There were plenty of Soldiers who engaged in misconduct and tested positive on a urinalysis test and were given a second chance to prove themselves; however, he was not given a second chance. He would love to be in the US Army again and would do anything to reenlist, however, if he is unable to do so he requests to be granted an honorable discharge so that he can make something of himself in the civilian world. The applicant feels everyone deserves a second chance. 

DISCHARGE UNDER REVIEW INFORMATION:

    a.  Application Receipt Date:  	3 December 2012			
    b.  Discharge Received:		General, Under Honorable Conditions		
    c.  Date of Discharge:			9 December 2011		
    d.  Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), paragraph 14-12c(2), JKK
RE-4
 e.  Unit of assignment:  	11th Quartermaster Company,  264th Combat Sustainment Support Battalion, 82nd Sustainment Brigade, Fort Bragg, North Carolina			
   f.   Current Enlistment Date/Term:	24 July 2008, 4 years, 19 weeks	
   g.  Current Enlistment Service:  	3 years, 4 months, 16 days	
   h.  Total Service:			3 years, 4 months, 16 days
   i.   Time Lost:				None
   j.   Previous Discharges: 		None	
   k.  Highest Grade Achieved: 		E-4	
   l.   Military Occupational Specialty:	88M10 Motor Transport Operator	
   m.  GT Score: 				85	
   n.  Education:				HS Graduate
   o.  Overseas Service: 			Afghanistan	
   p.  Combat Service:			Afghanistan (090906 – 100901)
   q.  Decorations/Awards:  		JSAM, AAM, NDSM, ACM-2, 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 24 July 2008, for a period of 4 years and 19 weeks.  He was 18 years old at the time of entry and a high school graduate.  He served in Afghanistan; earned a JSAM, AAM, and two ACMs; and completed 3 years, 4 months, and   16 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 3 October 2011, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), commission of a serious offense, misconduct-abuse of illegal drugs. Specifically for wrongfully using marijuana  (110416 – 110517).

2.  The commander recommended a general, under honorable conditions discharge.

3.  On 4 October 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted 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 21 October 2011, the separation authority approved and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 9 December 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 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 coded IU, Inspection Unit, 16 May 2011, marijuana.

2.  Article 15, dated 9 August 2011, wrongful use of marijuana a schedule I controlled substance (110416 – 110516).  The punishment consisted of reduction to the grade of E-2; forfeiture of $822 pay, suspended, to be automatically remitted if not vacated (111107); extra duty and restriction for 45 days; (FG). 
3.  A negative counseling statement dated 24 June 2011, for testing positive for an illegal substance on a urinalysis.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided an on-line application and a DD Form 214. 

POST-SERVICE ACTIVITY: 

The applicant provided no information concerning his post service activities.

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.  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 analyst determined that 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, 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 service below that meriting an honorable discharge.  The applicant’s record of service was marred by an Article 15 for a violation of the Uniform Code of Military Justice.

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 incident that caused his discharge was the only one in his entire Army career.  Although a single 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 a single 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.  

5.  The applicant  raised the issue that other Soldiers with similar offenses were not discharged.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

6.  Additionally, the applicant made the contention that he was not given the opportunity for 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.

7.  The applicant desires to reenlist; 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.  A RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

8.  The applicant also desires to attend school; however, 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.

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

10.  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: 10 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)		AR20120022413



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1