IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 May 2013

      CASE NUMBER:  	AR20130000204
___________________________________________________________________________

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 to upgrade his characterization of service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, his discharge was a one-time mistake—it was the first and only incident in his military career.  He had multiple health conditions that needed to be treated and at the time, he could not get them treated.  His physician assistant at the time was too busy to see his issues and had told him repeatedly to return.  However, the issues overtime worsen and he took matters into his own hand.  He had sleep issues with pain in his shoulders and hands.  It began to affect his readiness and ability to be able to work at one hundred percent.  He could never get any treatment until he got into trouble.  He also completed his punishment of 45 days incarceration, 45 days pay as E-1, and 45 days half-pay.  He learned from his mistake and feels that he completed his punishment without complaining.  Therefore, he feels he should not have this one little mistake on his record for a long time.  Overall he is a good person and was an outstanding Soldier who always performed his assigned duties and never purposely started trouble with his superiors.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	31 December 2012
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	28 June 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	HHC, 1st Battalion, 38th Infantry Regiment, Joint 
			Base Lewis-McChord, WA
	f.	Current Enlistment Date/Term:	30 December 2008, 3 years, 28 weeks
	g.	Current Enlistment Service:	3 years, 5 months, 29 days
	h.	Total Service:	3 years, 5 months, 29 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	25Q (Multichannel Transmission Systems 
			Operator/Maintainer)
	m.	GT Score:	98
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (090911-100818)
	q.	Decorations/Awards:	ARCOM; AGCM; NDSM; ICS-CS; ASR; OSR
	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 30 December 2008 for a period of 3 years and 28 weeks.  He was 20 years old at the time of entry and a high school graduate.  He served in Iraq.  He earned an ARCOM and completed 3 years, 5 months, and 29 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 11 May 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 (drug abuse) for wrongfully using marijuana.  

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

3.  On 14 May 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted 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 17 May 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 28 June 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 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 is one positive urinalysis report contained in the record:  IR, Inspection random sample, 24 January 2012, marijuana

2.  Article 15, dated 14 March 2012, wrongfully used of marijuana (111225-120124).  The punishment consisted of reduction to the grade of E-1, forfeiture of $745 per month for two months, 45 days of extra duty and restriction. (FG) 

3.  One negative counseling statement, dated 23 February 2012, for testing positive for marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant did not provide additional evidence. 

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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, 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 Articles 15 for violation of the Uniform Code of Military Justice and  a negative counseling statement.

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 also contends that he had good service by performing all his assigned duties.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by his serious offense of abusing an illegal drug.

6.  In addition, the applicant contends his medical issues affected his behavior and ultimately caused him to be discharged.  However, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  Therefore, this contention is also without merit.

7.  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.  Accordingly, 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 being both proper and equitable, recommend the Board deny relief.








SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review	      Date: 17 May 2013        Location: Washington, DC

Did the Applicant Testify?  NA 

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:	NA
Change RE Code to:		NA
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)		AR20130000204



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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