IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 July 2013

      CASE NUMBER:  	AR20130000445
___________________________________________________________________________

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 that 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 discharge from general, under honorable conditions to honorable and the narrative reason for separation changed to “Administrative Separation.”  

2.  The applicant states, in effect, that he smoked marijuana at a time in his life when things weren’t going right for him.  He has put his life in order and holds a job with DynCorp as an aviation technician and would like to move up in the ranks at his company; however, his discharge is preventing him from doing g that.  He is a dedicated employee and performs to the best of his ability and is an asset to the company.  He is involved with his family and does his best to help his friends.  He believes the discharge is holding him back from his full potential and the success that he is striving for.  The applicant’s counsel states on his behalf that he has been denied meaningful education and employment opportunities.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			27 August 2007
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4        
e. Unit of assignment:			Company B, 96th Aviation Support Battalion
101st Airborne Division (Air Assault)
Fort Campbell, KY
f. Current Enlistment Date/Term:	27 September 2001, 6 years
g. Current Enlistment Service:	5 years, 11 months, 1 day
h. Total Service:			5 years, 11 months, 1 day
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-5	
l. Military Occupational Specialty:	15J10, Armed/EL/AV Rep
m. GT Score:				94
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (040201-050301), (050901-060820)
q. Decorations/Awards:		ARCOM-2, AAM, AGCM, NDSM, GWOTSM, 
GWOTEM, KDSM, ICM, NPDR, ASR, OSR-3, CAB
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 27 September 2001, for a period of 6 years.  He was 27 years old at the time of entry and had a high school equivalency (GED).  He was serving at Fort Campbell, KY when his discharge was initiated.  He served two tours of combat duty in Iraq (040201-050301), (050901-060820) and awarded two ARCOMs, AAM, AGCM and the CAB 

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows that on 7 June 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for commission of a serious offense, abuse of illegal drugs, specifically for wrongfully using marijuana.

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 14 June 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action and indicated he would be submitting a statement on his own behalf.  However, the applicant did not submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation with a general, under honorable conditions discharge.  

4.  On 8 August 2007, 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 27 August 2007, for misconduct (drug abuse), under the provisions of Chapter 14-12c (2), with a general, under honorable conditions discharge, SPD code JKK and an 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.  The applicant received a field grade Article 15, dated 13 April 2007, for wrongfully using marijuana (061211-070110); his punishment consisted of reduction to Specialist (E-4), forfeiture of pay in the amount of $400.00 for one month, and extra duty for 45 days.

2.  One negative counseling dated 15 February 2007, for testing positive for marijuana on a company urinalysis administered on 10 January 2007.


EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 214, self-authored statement, character reference letters, and various copies of his certificates of awards and appreciation with various dates.  

POST-SERVICE ACTIVITY: 

The applicant states he has a job with DynCorp as an aviation technician and he is an asset to the company.

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 14-12c (2), 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 an RE Code of 4.



DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for separation was carefully considered.  However, after examining the applicant’s service record, and the issues and documents 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 NCO.  The applicant, as a NCO, 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.  

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 characterization of his discharge is affecting his life and his ability to obtain employment and to further his education.  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 the incident of misconduct; the negative counseling statement and the documented actions under Article 15 of the UCMJ. 

5.  The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Furthermore, 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. 

6.  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. 

7.  The applicant request’s that the narrative reason for discharge be changed to read; “administrative separation.”  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, paragraph 14-12c(2), for drug offenses.  The regulation further stipulates that no deviation is authorized.  
8.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4. 

9.  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:  12 July 2013	Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: yes [ redacted ]

Witnesses/Observers: NA 

Board Vote:
Character  	Change:  2	No Change:  3
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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20130000445

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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