IN THE CASE OF:  	

      BOARD DATE:  	17 April 2013

      CASE NUMBER:  	AR20120022778
___________________________________________________________________________

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 was discharged for drug use without having been given a drug test or any other evidence to support the allegations.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 December 2012	
b. Discharge Received:		General, Under Honorable Conditions	
c. Date of Discharge:			29 October 2012	
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, paragraph
      14-12c(2), JKK, RE-4	
e. Unit of assignment:			Alpha Company, 1st Battalion, 222d Aviation
					Regiment, Fort Eustis, VA	
f. Current Enlistment Date/Term:	7 September 2011, 6 years
g. Current Enlistment Service:	1 year, 1 month, 23 days	
h. Total Service:			1 year, 1 month, 23 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	None
m. GT Score:				109
n. Education:				HS Graduate
o. Overseas Service:			None	
p. Combat Service:			None
q. Decorations/Awards:		None
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 7 September 2011, for a period of 6 years.  He was 23 years old at the time of entry and a high school graduate.  He completed 1 year,          1 month, and 23 days of active duty service.




SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 27 September 2012, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c(2), Misconduct-Abuse of Illegal Drugs.  Specifically for the following: after having been investigated by CID, it was found that he had used Spice, a synthetic cannabinoid, in violation of Article 112a, UCMJ.  Additionally, the investigation revealed the applicant committed adultery by having an inappropriate sexual relationship with someone not his wife. 

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

3.  On 9 October 2012, 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 23 October 2012, the separation authority directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 29 October 2012, under Army Regulation 635-200, paragraph 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.  A developmental counseling form dated 24 August 2012, concerning being considered for separation from service under the provision of AR 635-200, paragraph 14-12c(2).
      
6.  A CID Report dated 11 July 2012, number 0096-12-CID222-87851, that indicates the applicant was the subject of an investigation for using spice and committing adultery.  

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 149, his statement from the discharge packet and four statements of support and a DD Form 214. 

POST-SERVICE ACTIVITY: 

The applicant provided no information concerning his post discharge activities or accomplishments.

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 record confirms 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.  By the misconduct, the applicant diminished the quality 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 was discharged for drug use without having been given a drug test or any other evidence to support the allegations.  However, the applicant’s record reveals he was investigated by the CID for drug use and adultery, and initially admitted to drug use and to adultery. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  
 
5.  The records show the proper discharge and separation authority procedures were followed in this case.  

6.  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:  Record Review	  Date:  17 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)		AR20120022778



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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