IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 April 2013

      CASE NUMBER:  	AR20120022564
___________________________________________________________________________

Board Determination and Directed Action

1.  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 characterization was improper.  

2.  The record shows that  the government introduced into the discharge packet the results of a biochemical test 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.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was proper and equitable and the Board 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 discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that he would like an upgrade of his discharge so that he can receive his GI Bill and other VA benefits.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 December 2012	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			23 March 2011
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4
e. Unit of assignment:			B Co, 1/38th In, JBLM, WA
f. Current Enlistment Date/Term:	25 September 2008, for 3 years and 18 weeks
g. Current Enlistment Service:	2 years, 5 months, 29 days
h. Total Service:			2 years, 5 months, 29 days
i. Time Lost:				None	
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	11B10/Infantryman
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (090913-100817)
q. Decorations/Awards:		ARCOM, ICM-w/CS-2, NDSM, GWOTSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		

The record shows the applicant enlisted in the Regular Army on 25 September 2008 for a period of 3 years and 18 weeks.  He was 18 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  He served one combat tour in Iraq.  He earned an ARCOM and completed         2 years, 5 months, and 29 days of total active duty service.  



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 16 February 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-abuse of illegal drugs for the wrongful use of marijuana x 2 between (101010 and 101110 and 101201 and 110101).  

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

3.  On 16 February 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and 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 intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 25 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 discharged from the Army on 23 March 2011, 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 are two Laboratory Confirmed Biochemical Test Results memorandums, for test sample dates of (101110 and 110106)

2.  There is one positive urinalysis report for marijuana contained in the record; RO (Rehabilitation), 6 January 2011.

3.  Article 15 dated 8 December 2010, for wrongful use of marijuana between (101010 and 101110).  The punishment consisted of reduction to E-1, forfeiture of $723.00 pay for two months, extra duty for 45 days, and restriction for 45 days (FG).

4.  There are 2 negative counseling statements that were issued between 29 November 2010 and 31 January 2011, for testing positive on a urinalysis test.




EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of his DD Form 214 for the period of enlistment under review with his application.

POST-SERVICE ACTIVITY: 

None were provided by the applicant.  

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 issues 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 6 January 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.  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: 17 April 2013   Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

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)		AR20120022564



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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