IN THE CASE OF:  	

      BOARD DATE:  	21 June 2013

      CASE NUMBER:  	AR20130001083
___________________________________________________________________________

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, he did not use drugs nor was there any misconduct.  His misconduct was a single incident.  He is having a hard time finding employment because of the discharge he received.  If the narrative reason on his DD Form 214 was different, he would be making the appropriate money to take care of his family.  He was having serious relationship problems when cited for driving under the influence (DUI) and he chose not to be at home.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 January 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			23 March 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			305th Quartermaster Company, 129th Combat							Sustainment Support Battalion, Fort Campbell, KY
f. Current Enlistment Date/Term:	1 December 2006, 6 years
g. Current Enlistment Service:	5 years, 3 months, 23 days 
h. Total Service:			11 years, 9 months, 5 days
i. Lost time:				None
j. Previous Discharges:		ARNG-(000619-000725)/NA									IADT-(000725-010412)/HD									ARNG-(010413-010711)/HD									RA-(010712-030923)HD										RA-(030924-061130)/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	92F10, Petroleum Supply Specialist/91B10, Wheeled 						Vehicle Mechanic
m. GT Score:				103
n. Education:				GED Certificate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (020416-021016)/Iraq x 3 								(030214-040214, 051016-061016, 081230-091223)
q. Decorations/Awards:		ARCOM-2, AAM-4, AGCM-3, NDSM, ACM-W/CS						ICM-W/6 CS, GWOTEM, GWOTSM, NPDR, ASR						OSR-3 
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 19 June 2000, for a period of 8 years.  He was 20 years old at the time of entry with a GED Certificate.  He was trained in and awarded military occupational specialty (MOS) 91B10, Wheeled Vehicle Mechanic and received an honorable discharge.  He enlisted in the Regular Army on 12 July 2001, for a period of 3 years.  His last reenlistment on 1 December 2006 was for a period of 6 years and he was 26 years old at the time.  He subsequently trained in and was awarded MOS 92F10, Petroleum Supply Specialist and achieved the rank of SGT/E-5.  His record also shows he served four combat tours and earned several awards including an ARCOM-2, AAM-4, and an AGCM-3.  He was serving at Fort Campbell, KY, when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 28 September 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 for wrongfully using oxycodone and oxymorphone (110524-110526). 

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 13 October 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service of no less favorable than honorable and indicated he intended to submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate and senior commanders reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 

4.  On 1 February 2012, the separation approving authority disapproved the applicant’s conditional waiver and referred the case to an administrative separation board.  On 1 March 2012, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board and did not submit a statement on his behalf.  

5.  On 6 March 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

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

7.  The applicant was discharged from the Army on 23 March 2012, 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 4. 
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 28 July 2011 for wrongfully using oxycodone (110524-110526); and wrongfully using oxymorphone (110524-110526); the punishment consisted of reduction to    E-4, forfeiture of $1,162 pay x 2 months (suspended), and extra duty for 45 days, (FG).

2.  There was an NCOER covering the period of 4 December 2007 through 31 March 2008, during the period under review, which the applicant was rated as fully capable, 2/2, successful/superior.

3.  The record of evidence contains a General Officer Memorandum of Reprimand (GOMOR), dated 11 September 2008, for drinking and driving with his blood alcohol content (bac) .220%, (administrative).

4.  The record of evidence contains a Military Police Report, dated 28 July 2008, which indicated the applicant was under investigation for driving under the influence of alcohol.

5.  The record of evidence contains a positive urinalysis report coded IR, dated 25 May 2011.

6.  He received three negative counseling statements that were completed on 26 July 2011,   27 July 2011 and 3 August 2011, for missing an appointment, pending administrative separation and a positive drug test. 

EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided a DD Form 293; two self-authored statements; Letter, Chief, Case Management Division; two character statements; DD Form 214; and Discharge Orders 069-0629.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 a SPD Code of "JKK" will be assigned a RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for separation 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 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 prescription drugs for which he had no legitimate use, compromised the trust and confidence placed in an NCO.  The applicant, as an NCO, had the duty to support and abide by the Army's drug policies.  By abusing prescription 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 a violation of the Uniform Code of Military Justice, a GOMOR, a Military Police Report and three negative counseling statements.

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, 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.  

5.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned a RE Code of 4.  A RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.  

6.  The applicant contends he did not use drugs nor was there any misconduct.  The evidence of record (Article 15) and a positive urinalysis report shows the applicant received punishment for using prescription drugs and he tested positive for the same drugs.  Moreover, abuse of prescription drugs is misconduct and this contention is without merit.

7.  The applicant further contends his misconduct was a single incident.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  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.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

8.  The applicant also contends he is having a hard time finding employment because of the discharge he received.  The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

9.  The applicant additionally contends if f the narrative reason on his DD Form 214 was different, he would be making the appropriate money to take care of his family.  The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

10.  Furthermore, the applicant contends he was having serious relationship problems when cited for driving under the influence (DUI) and he chose not to be at home.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought any such assistance.

11.  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: 21 June 2013            Location: Washington, DC

Did the Applicant Testify:  No

Counsel:  NA

Board Vote:
Character  	Change:  2	No Change:  3
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:		No Change
Grade Restoration to:		NA
Change Authority for Separation:	No Change






















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)		AR20130001083



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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