IN THE CASE OF:  	

      BOARD DATE:  	5 June 2013

      CASE NUMBER:  	AR20130000818
___________________________________________________________________________

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, the reason why his discharge should be changed is so that may receive educational benefits.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	26 December 2012
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	15 November 2002
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12c(2) 
			JKK, RE-3
	e.	Unit of assignment:	A Troop, 1st Squadron, 7th Cavalry Regiment, 4th 
			Brigade, 1st Cavalry Division, Fort Hood, TX
	f.	Current Enlistment Date/Term:	14 June 2000, 4 years
	g.	Current Enlistment Service:	2 years, 4 months, 28 days
	h.	Total Service:	2 years, 4 months, 28 days
	i.	Time Lost:	4 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	19D (Cavalry Scout)
	m.	GT Score:	102
	n.	Education:	HS Graduate
	o.	Overseas Service:	Korea
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; 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 14 June 2000 for a period of 4 years.  He was 19 years old at the time of entry and a high school graduate.  He served in Korea.  He was trained in and awarded military occupational specialty (MOS) 19D, Cavalry Scout.  His record documents no acts of valor or significant achievement.  He completed 2 years, 4 months, and 28 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 7 August 2002, 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 misconduct (serious offense).  Specifically for the following offenses:  

a. receiving a Field Grade Article 15 (020426) for wrongfully using marijuana;
b. failing to be at his appointed place of duty at the prescribed time (020321)
c. leaving post and not reporting for motor pool guard  (020321)
d. failing to report to motor pool guard duty (020601)

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

3.  On 25 September 2002, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived his right to an administrative separation board (although he was not entitled to such a board), 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 25 October 2002, 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 15 November 2002, 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 a RE code of 3. 

6.  The applicant’s service record indicates an unauthorized absence or time lost; however, there is no record of his AWOL status or mode of return.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record:  CO, Command Directed, 10 March 2002, marijuana 

2.  Article 15, dated 26 April 2002, wrongful use of marijuana (020210-020310).  The punishment consisted of reduction to the grade of E-1, forfeiture of $552 per month for two months, 45 days of extra duty and restriction, (FG). 

3.  Three negative counseling statements dated between 11 March 2002 and 1 June 2002, for showing up to work late, missing formations, and wrongfully using marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no 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 issue 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 Article 15 for violation of the Uniform Code of Military Justice and several negative counseling statements.
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 that an upgrade of his discharge would allow educational benefits through the use of the GI Bill.  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.

5.  In addition, although the record confirms the government introduced into the discharge packet the results of a biochemical test of the urinalysis collected on 10 March 2002, coded as CO (Command Directed), the counseling statement, dated 11 March 2002, further details the events leading up to the basis for the applicant’s commander to direct a urinalysis test on 10 March 2002.  Accordingly, the evidence of the record established that the night prior to the urinalysis test, the applicant and other Soldiers in his unit who were apparently tested in the same urinalysis test were apprehended by military police authorities for possession and suspected use of marijuana in the barracks.  The circumstances leading to that apprehension would have provided the company commander with probable cause to direct the urinalysis testing the following day.  Therefore, the evidence establishes that the incorrect coding of the urinalysis collected based on probable cause renders the results of the biochemical test of the urinalysis collected on 10 March 2002 as no violation of the limited use policy.  Furthermore, the record confirms that on 26 April 2002, accepted nonjudicial punishment for wrongfully using marijuana based on the same urinalysis.  However, the question whether the urinalysis was properly coded is a question of fact for the Army Discharge Review Board to determine given the conclusion that could be drawn by the command’s treating the urinalysis as though it was not limited use evidence, and based on the circumstances leading up to the unit’s urinalysis testing for the specific Soldiers.

6.  In view of the aforementioned, it appears the CO code used on the DD Form 2624 was in all likelihood incorrect and should have been coded PO for “Probable Cause” instead of CO for “Competence for Duty.”  If this was in fact a harmless error, then the rights of the applicant were not prejudiced by the error on file in this case.  The evidence in the record did not create a substantial doubt that the discharge would have been any different if the error had not been made.

7.  Notwithstanding the stated incorrect coding, it appears 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: 	Record Review	    Date:  5 June 2013	Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

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)		AR20130000818



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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