IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 May 2013

      CASE NUMBER:  	AR20130001015
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review considering the Discussion and Recommendation which follows, the Board determined the characterization of service is improper.  The record confirms the government introduced into the discharge packet a memorandum dated, 26 May 2011, indicating the applicant self-referred to the Army Substance Abuse Program (ASAP).  This is limited use information as defined in AR 600-85 and is protected evidence.  Use of this information mandates award of an honorable characterization of service.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.  






      
      
      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 a change to the narrative reason for separation.

2.  The applicant states, in effect, he self-referred to the rehabilitation program for alcohol; however, due to the unit mission he was unable to complete the required time and was forced to withdraw from the program.  He was going through a hard time dealing with depression and psychological stress.  He enrolled at the VA to complete the program, even though he has been clean since being discharged.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			10 June 2011
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 
      JKK, RE-4
e. Unit of assignment:			D Co, 2-3rd  AV Regt, Hunter Army Airfield, GA
f. Current Enlistment Date/Term:	22 January 2008, (term of service NIF)
g. Current Enlistment Service:	3 years, 4 months, 19 days
h. Total Service:			4 years, 9 months, 12 days
i. Time Lost:				None
j. Previous Discharges:		ARNG-(060829-060919)/NA									IADT-(060920-070718)/HD									ARNG-(070719-080121/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	15N20, Avionics Mechanic
m. GT Score:				110
n. Education:				3 years of college
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (080615-090817)
q. Decorations/Awards:		ARCOM, AAM, NDSM, ICM-W/CS,GWOTSM, ASR, 						OSR
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 Army National Guard on 29 August 2006, for eight years.  He was discharged on 21 January 2008, with an honorable discharge.  He enlisted in the Regular Army on 22 January 2008; the period of service is NIF. He was 28 years old at the time of entry and had completed three years of college.  He was trained in and was awarded military occupational specialty (MOS) 15N20, Avionics Mechanic.  He was serving at Hunter Army Airfield, GA, when his discharge was initiated.  His record also shows that he served a combat tour and earned several awards including an ARCOM and an AAAM.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 1 June 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 of misconduct-abuse of illegal drugs, specifically for wrongfully using cocaine (110426-110429).

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 1 June 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and indicated he intended to submit a statement on his own behalf (which is not contained in the available record).  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.  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’s record does not show any record of unauthorized absences or lost time.

6.  The applicant was discharged from the Army on 10 June 2011, 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, with an RE code of 4. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record coded, IU, Inspection Unit, dated 29 April 2011, cocaine.

2.  There are 15 negative/performance counseling statements done between 18 February 2010 through 25 May 2011, for losing his ID card, possible separation, failing to obey orders, failing to report, AWOL, initial counseling, tuition assistance, dereliction of duty, missing formation, insubordination, fraternization, intent to chapter, and failure of urinalysis test.

3.  A Field Grade Article 15, dated 8 June 2011, for wrongfully using cocaine (110429); the punishment consisted of reduction to E-4 (suspended), forfeiture of $1,115 pay x 2 months, extra duty for 45 days and restriction for 45 days.

4.  The record contains two NCO Evaluation Reports covering the periods of 1 January 2010 through    31 August 2010 and 1 September 2010 through 10 June 2011, the applicant was rated as “Marginal,” 4/4, Fair/Fair and “Marginal”, 5/5, Poor/Poor.

EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided a DD Form 149, dated 21 December 2012; and Laboratory Results, eleven (11) pages. 

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.

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 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, the characterization of service is improper.  .  

2.  The record confirms the government introduced into the discharge packet a memorandum dated, 26 May 2011, indicating the applicant self-referred to the Army Substance Abuse Program (ASAP).  This is limited use information as defined in AR 600-85 and is protected evidence.  Use of this information mandates award of an honorable characterization of service.  

3.  The records show the proper discharge and separation procedures were not followed in this case.  

4.  Therefore, the characterization of service being improper, recommend the Board grant partial relief by upgrading the applicant’s characterization to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.   

5.  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(2),     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 (drug abuse),” the separation code is "JKK," and the reentry eligibility (RE) code of “4.”  

6.  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.  

7.  The applicant further contends he has been clean since being discharged.  The applicant is to be commended for his effort.  However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.  

8.  The applicant also contends he was going through a hard time dealing with depression and psychological stress.  The record shows that on 5 May 2011, the applicant underwent a mental status evaluation which indicated the BDI-II depression scale score was in the severe range of depression categories, and the BAI anxiety scale score was in the mild range of anxiety categories.  SM was informed he could return to the Behavioral Health Clinic for appointments as well, on an as needed basis.  There was no psychiatric disease or defect that warrants disposition through medical channels.  Service Member was cleared for any administrative actions deemed appropriate by Command.

9.  Therefore, the reason for discharge being both proper and equitable, recommend the Board deny relief.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Record Review    Date:  8 May 2013       Location: Washington, DC

Did the Applicant Testify?  NA

Counsel:  Yes [ redacted ]

Witnesses/Observers: NA

Board Vote:
Character  	Change:  5	No Change:  0
Reason	Change:  0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130001015



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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