IN THE CASE OF:  	

      BOARD DATE:  	8 May 2013

      CASE NUMBER:  	AR20130000120
___________________________________________________________________________

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 was tested for drugs by his unit twice within a 30 day period and believes he was not treated fairly in his punishment.  He contends marijuana does not completely leave the system for approximately 30 days; he was tested 22 October 2011 and   2 November 2011 therefore not enough time had passed for his second drug test.  He is now clean and does not intend to use drugs again and would like a second chance to serve in the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		26 December 2012	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			21 February 2012	
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Chapter 							14-12c(2), JKK, RE-4	
e. Unit of Assignment:			470th MI Bde, Fort Sam Houston, TX
f. Current Enlistment Date/Term:	8 June 2010, 3 years and 35 weeks
g. Current Enlistment Service:	1 year, 8 months, 14 days
h. Total Service:			1 year, 8 months, 14 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	35G10, Imagery Analyst
m. GT Score:				115
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 8 June 2010, for a period of 3 years and          35 weeks.  He was 18 years old at the time of entry and a high school graduate.  He received his training at Fort Leonard Wood, MO and Fort Huachuca and was assigned to Fort Sam Houston, TX.  He had no special awards or meritorious achievements.  He completed 1 year,  8 months, and 14 days of total active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 17 January 2012, 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 misconduct (serious offense) for the abuse of illegal drugs after testing positive for marijuana on 2 November 2011.

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

3.  On 23 January 2012, 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 27 January 2012, 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 21 February 2012, 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 a 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 is a positive urinalysis report for marijuana contained in the record coded; PO (Probable Cause), dated 2 November 2011.

2.  Article 15, dated 18 November 2011, for the wrongful use of marijuana between (111002-111102).  The punishment consisted of reduction to the grade of E-1, forfeiture of $733.00 pay per month for two months (suspended), extra duty for 30 days, restriction for 30 days, and an oral reprimand (FG). 

3.  Counseling statement, dated 24 October 2011, for being detained for alleged possession of marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of the drug test results report, dated 2 November 2011, report of medical examination, dated 19 December 2011, memorandum for legal office, dated 4 January 2012, discharge packet, counseling statement, dated 24 October 2011, record of proceedings under Article 15, UCMJ, dated 16 November 2011, report of mental status evaluation, dated   23 November 2011, report to suspend favorable personnel actions (Flag), dated 24 October 2011 and 4 January 2012, certificate of completion for the alcohol and drug abuse prevention training (ADAPT), dated 7 & 8 December 2011, separation orders, dated 6 February 2012, and DD Form 214 for the period of service under review in additional to his application.

POST-SERVICE ACTIVITY: 

None 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.



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, misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an 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, 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.  The applicant’s record of service was marred by an Article 15 for his 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 he was tested twice within a 30 day period for the same drugs and believes he was treated unfairly in his punishment.  However, the evidence of records show the applicant was tested on the 22 October 2011 and the results were reported to the unit on    2 November 2011.  Therefore the applicant was not tested twice as he believes. 

5.  Furthermore, 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.  

6.  The applicant has requested a change to the reentry (RE) code in order to rejoin the Service.  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.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.
7.  The records show the proper discharge and separation authority procedures were followed in this case.  

8.  Therefore, the reason for discharge and the characterization of service to include the RE code being both proper and equitable, recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  Date: 8 May 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)		AR20130000120



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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