IN THE CASE OF:  	

      BOARD DATE:  	15 May 2013

      CASE NUMBER:  	AR20130000521
___________________________________________________________________________

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 discharged for using a substance called potpourri and was not aware it contained illegal chemicals.  He completed the Army Substance Abuse Program (ASAP) and has never had any other problems.  He wants to improve himself and use the GI Bill benefits.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		28 December 2012	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			15 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, 2d Engineer Brigade, Joint Base Elmendorf-						Richardson, AK	
f. Current Enlistment Date/Term:	1 December 2011, term is NIF 
g. Current Enlistment Service:	0 years, 6 months, 15 days
h. Total Service:			3 years, 9 months, 21days
i. Time Lost:				None
j. Previous Discharges:		RA (080825-111130), HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	25U10, Signal Support Systems Specialist
m. GT Score:				103
n. Education:				GED	
o. Overseas Service:			Alaska
p. Combat Service:			None
q. Decorations/Awards:		AGCM, GWOTSM, NPDR, 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 25 August 2008.  He was 20 years old at the time and had a high school equivalency (GED).   His record does not indicate any special awards or meritorious achievements.  He served a total of 3 years, 9 months, and 21 days.  The applicant provided a DD Form 256A, which indicates he was honorably discharged on    30 November 2011.  However, the reenlistment contract is not contained in his service record.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 1 May 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c(2), for misconduct (drug abuse), specifically for testing positive for spice.

2.  Based on the above misconduct, the commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 1 May 2012, the applicant waived legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to appear before an administrative separation board, and 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 action and recommended approval with an under other than honorable conditions discharge.  

4.  The separation authority directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 15 June 2012, under Army Regulation 635-200, Chapter 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 lost time.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  One positive urinalysis report coded as PO, Probable Cause, 25 January 2012, synthetic cannabinoid.

2.  One negative counseling statement dated 26 January 2012, possession of drug paraphernalia.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement, DD Form 214, a DD Form 256A (HD Certificate), ASAP plan, and a benefits counseling letter.

POST-SERVICE ACTIVITY: 

None provided with the application.

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 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 (spice), 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.

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 not aware that potpourri (spice) contained illegal chemicals.
However, spice is an illegal substance under federal regulations.  The fact he was not aware does not mitigate his misconduct or clear him of the Uniform Code of Military Justice violation that led to his discharge from the Army.  

5.  The applicant contends that he had over 3 years of good service.  The applicant’s service accomplishments and the quality of his service prior to the incident 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 repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6.  The applicant would like the benefits of the GI Bill in order to improve himself.  However, 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.

7.  The applicant also contends that his reenlistment is not reflected on the DD Form 214 he was issued and provided a DD Form 256A (HD Certificate).  However, the applicant’s requested change does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 

8.  The records show the proper discharge and separation authority procedures were followed in this case.  

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:  15 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:		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)		AR20130000521

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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