IN THE CASE OF:  	Mr.

      BOARD DATE:  	26 April 2013

      CASE NUMBER:  	AR20130000529
___________________________________________________________________________

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 discharge characterization from general, under honorable conditions to honorable and a change to the narrative reason for separation.

2.  He states, in effect, that the offense he committed was before the Army had a solid policy on the substance (spice).  He requested to be enrolled into the Army Substance Abuse Program (ASAP) to ensure that there would be no further issues.  He was to attend a recommended ASAP course upon redeployment from Afghanistan.  He re-deployed to stateside, enrolled and completed more than the recommended training from ASAP.  A circumstance may have contributed to the initiation of his discharge was what he considered an inappropriate friendship between his first line supervisor and his future ex-wife.  He believes that the event of alcohol consumption inside his home should not be attached to the event occurring 2 years prior and already atoned for. The offenses are separate and should not be basis for the characterization of service for over five years of honorable service, including two combat deployments. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 December 2012
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			11 June 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:			A Troop, 1-61st Cavalry Regiment, Fort Campbell, KY
f. Current Enlistment Date/Term:	26 July 2008, 6 years
g. Current Enlistment Service:	1 years, 5 months, 11 days 
h. Total Service:			5 years, 3 months, 27 days
i. Lost time:				None
j. Previous Discharges:		RA-(070215-080725)/HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	19D10, B9, Cavalry Scout
m. GT Score:				89
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (080308-090307)/Afghanistan (100825-110814)
q. Decorations/Awards:		ARCOM-2, AGCM, NDSM, ICM-W/2 CS, ACM-W/2						CS, GWOTSM, ASR, OSR-2, NATOMDL, CAB
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 15 February 2007, for a period of 3 years,        18 weeks.  He was 18 years old at the time of entry and a high school graduate.  On 26 July 2008, he reenlisted for a period of 6 years and was 19 years old at the time. He was serving at Fort Campbell, KY, when his discharge was initiated.  His record also shows that he served two combat tours and earned several awards including an ARCOM, AGCM and a CAB.
He was trained in and awarded military occupational specialty (MOS) 13F19D10 B9, Cavalry Scout and achieved the rank of SPC/E-4.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 23 January 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct.  Specifically for the following offenses: 

    a. being arrested and charged with possession of K2 (spice) (100818).
         
    b. failing to report at the time prescribed to his appointed place of duty (111019).
       
    c. disobeying a lawful order from a noncommissioned officer (111026).
         
2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 4 April 2012, the applicant consulted with Trial Defense Services (TDS), was advised of the impact of the discharge action under the provisions of Chapter 13, AR 635-200, by the TDS Paralegal NCO.  

4.  The applicant's election of rights under the provisions of Chapter 14, paragraph 14-12c, is not contained in the available record and the analyst presumed government regularity in the discharge process.  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 of a general, under honorable conditions discharge.  

5.  On 8 February 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  However, the discharge was suspended until 1 February 2013 (not to exceed 12 months), at which time, if there is no evidence of further misconduct or action which constitutes substandard performance of duty, this action will be remitted.  

6.  On 21 March 2012, the separation authority under the provisions of AR 635-200, paragraph 1-18, advised the applicant he was vacating the suspension of his administrative separation based on the following reason, he violated his ASAP Rehabilitation agreement. 
7.  On 19 April 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 

8.  The applicant’s record does not show any record of unauthorized absences or lost time or actions under the Uniform Code of Military Justice.

9.  The applicant was discharged from the Army on 11 June  2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains a Military Police Report, dated 10 August 2010, for possession of a controlled substance.

2.  There are 6 negative counseling statements that were completed on 19 October 2011 through 23 May 2012, for enrollment in the Army Substance Abuse Program (ASAP), flawed judgment, failing to report, failing to attend a mandatory scheduled appointment, disobeying a lawful order from an NCO and his total debt to the government.

EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided an online application, 14 December 2012; DD Form 214, dated          11 June 2012; and a Memorandum, Characterization of Service, dated 25 January 2012. 

POST-SERVICE ACTIVITY: 

The applicant did not provide any.

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 his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.  

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 incidents of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant requested a change to the narrative reason for separation.  However, the applicant’s discharge was directed under the provisions of Chapter 14, paragraph 14-12c,     AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct” and the separation code is "JKQ," and the reentry eligibility (RE) code of “3.”  

5.  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  
 
6.  The applicant contends the offence he committed was before the Army had a solid policy on spice.  The record shows the applicant was not discharged for the use or possession of spice.  



7.  The applicant further contends circumstance may have contributed to the initiation of his discharge was what he considered an inappropriate friendship between his first line supervisor and his future ex-wife.  A review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   

8.  The applicant also contends he believes that event of alcohol consumption inside his home should not be attached to the event occurring 2 years prior and already atoned for; the offenses were separate and should not be basis for the characterization of service for over five years of honorable service, including two combat deployments.  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 of service.

9.  Also, 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  overcome the reason for discharge and characterization of service granted.

10.  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: Personal Appearance    Date:  26 April 2013       Location: Washington, DC

Did the Applicant Testify?  NA

Counsel: None

Witnesses/Observers: NA















Board Vote:
Character  	Change:  1	No Change:  4
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:		N/A
Grade Restoration to:		N/A
Change Authority for Separation:	N/A
Other:					N/A




























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 Condition


ADRB Case Report and Directive (cont)		AR20130000529



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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