IN THE CASE OF:  	

      BOARD DATE:  	15 July 2013

      CASE NUMBER:  	AR20130000751
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 a change to his narrative reason for discharge.

2.  The applicant states, in effect, through legal counsel that he was unjustly discharged and the evidence presented at his administrative separation board did not support a finding of misconduct.  There was no evidence of possession or use of any controlled substance.  The applicant contends his narrative reason for discharge relates to steroids and not some harsher mild-altering type of illegal substance.  Therefore, the narrative reason for separation requires change.  He has a stellar record and served honorably for the entire period of his enlistment.  He also contends he had ordered diet supplements online after reading about them in a magazine and did not specifically know what the online company was sending him but assumed they were legitimate supplements.  Additionally, he was questioned by both CID and his chain of command and was never read his Article 31 rights.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 January 2013
b. Discharge Received:		Honorable	
c. Date of Discharge:			12 March 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), Chapter 14 								paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			HHT, 7th Sqdn, 17th Cav Regt, APO AE
f. Current Enlistment Date/Term:	7 September 2007, for 4 years (extension of service 						was at the request and for the convenience of the 						government in support of a contingency operation)	
g. Current Enlistment Service:	4 years, 6 months, 6 days
h. Total Service:			15 years, 4 months, 20 days
i. Time Lost:				None
j. Previous Discharges:		RA-890516-920515/HD										USARCG-920516-970322/NIF									     (Break-in-Service)										ARNG-040830-060322/NA
					OAD-060317-070906/HD				
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	15P10, Aviation Operations Specialist
m. GT Score:				111
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (080817-081122) Afghanistan (110214-120211)
q. Decorations/Awards:		ARCOM, AAM-3, AGCM-3, ACM-w3CS, NDSM-2 						GWOTSM, ICM-w/CS, NPDR, ASR, OSR-2 							AFRM-w/M Device, NATOMDL, CIB, EIB
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		

After serving in the Regular Army and Army National Guard, the applicant enlisted in the Regular Army on 7 September 2007, for a period 4 years.  At the time of enlistment he was    37 years old.  The applicant's record indicates he served a period of service in Iraq and Afghanistan in addition to a prior period of service in Iraq.  His record shows he has earned an ARCOM, three AAM's, and three AGCM's.  He completed a total of 15 years, 4 months, and  20 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 15 December 2011, 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-abuse of illegal drugs.  Specifically for wrongfully introducing some methandienone, a schedule III controlled substance on 15 October 2011, while receiving special pay.

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 15 December 2011, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board.  The applicant 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 21 December 2011, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 19 January 2012, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of honorable.

6.  On 4 February 2012, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of honorable.

7.  The applicant was discharged from the Army on 12 March 2012, with a characterization of service of honorable under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

8.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 19 November 2011, for wrongfully introducing some methandienone, a schedule III controlled substance, on to an installation under the control of the armed forces, while receiving special pay on 15 October 2011.  The punishment consisted of reduction to the grade of E-1, forfeiture of $783.00 pay per month for two months, extra duty for 45 days, and restriction for 45 days (FG).

2.  A CID Report, dated 17 October 2011, that indicates the applicant was the subject of an investigation for wrongful smuggling of steroids and wrongful possession of steroids

3.  Two negative counseling statements dated between 4 November 2011 and 8 December 2011 concerning the applicant wrongful possession of a controlled substances and being considered for separation.
      
4.  Service School Academic Evaluation report dated 11 July 2009, for completion of the warrior leader course.  The applicant was evaluated as having achieved course standard.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, memorandum from his legal counsel, and documents from his AMHRR (124 pages). 

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.

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 an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for a change to the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s service record, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for the discharge.

2.  The applicant, by violating the Army's policy not to possess illegal drugs, compromised the special 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.  The applicant contends he never had possession of the package or the contents inside the package.  The evidence of record shows that the applicant admitted to having ordered steroids on the internet knowing that steroid use was illegal.  Although the applicant contends he never had possession of the package, it appears the applicant ordered the steroids with the intention of using them, risking a military career that ultimately caused his discharge from the Army.

3.  The applicant contends the drug abuse characterization relates to steroids and not some harsher mild-altering type of illegal substance.  Therefore, the narrative reason for separation requires change.  However, 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.  
4.  The applicant contends he had a stellar record and served honorably for the entire period of his enlistment.  It's noted the applicant was discharged with a characterization of service of honorable.  However, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant's good record of service was the basis for his receiving an honorable discharge instead of the normal UOTHC discharge. 

5.  However, the evidence of record shows the administrative separation board did determine a preponderance of the evidence did support the allegation that, between on or about               15 October 2011, the applicant wrongfully introduced methandienone while receiving special pay.

6.  The applicant contends he was never read his Article 31 rights; however, records show that during the administrative separation board procedures, the special agent investigating the applicant's case stated the applicant was read his Article 31 rights.

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.  

8.  In view of the foregoing, the narrative reason for discharge being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  	Date:  15 July 2013      Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  Yes

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)		AR20130000751



Page 2 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1