IN THE CASE OF:  	Mr. 

      BOARD DATE:  	5 June 2013

      CASE NUMBER:  	AR20130001085
___________________________________________________________________________

Board Determination and Directed Action

1.  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 improper.  

2.  The evidence indicates the applicant was entitled to an administrative separation board because he had over 6 years of total active and reserve military service at the time of initiation of the separation action.  An administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects the applicant did not receive an administrative separation board and did not waive it either.  Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  

3.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  




      
      
      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, his discharge was inequitable, because it was based on one isolated incident in almost six years of service with no other adverse action.  He had honorable service up until his discharge and was a promotable E-4.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	11 January 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	24 December 2003
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12c, JKQ, 
			RE-3
	e.	Unit of assignment:	A Trp, 2nd Sqdn, 14th Cavalry, 1st Bde, 25th 
			Infantry Division, Fort Lewis, WA
	f.	Current Enlistment Date/Term:	23 December 2002, 6 years
	g.	Current Enlistment Service:	1 year, 2 days
	h.	Total Service:	6 years, 2 months, 25 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (970930-000702) / HD
			ARNG (000703-001025) / HD 
			RA (001025-021222) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	19D (Cavalry Scout)
	m.	GT Score:	100
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	AAM; NDSM; ASR
	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 25 October 2000, with record of previous service on active duty and with the Army National Guard.  He reenlisted on 23 December 2002, for a period of 6 years.  He was 22 years old at the time of entry and a high school graduate.  There is no record of having served overseas.  His record reflects an award of an AGCM (001025-031024) and earned an ARCOM (980115-000618) and an AAM (000913-990918).  He completed 6 years, 2 months, and 25 days of active duty service.  The applicant was serving at Fort Lewis, Washington, when his discharge proceedings were initiated. 
SEPARATION FACTS AND CIRCUMSTANCES:

1.  Although the unit commander’s memorandum which notified the applicant of the discharge proceedings is not available, the evidence in the record indicates that the applicant acknowledged receipt of being notified on 16 December 2003.  In the notification memorandum, the unit commander would have notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct for abuse of illegal drugs by wrongfully using cocaine (031023-031030), as presented in the unit commander’s forwarding memorandum, dated 17 December 2003.

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

3.  On 17 December 2003, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not indicate whether he was submitting 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 18 December 2003, 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 24 December 2003, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is a positive urinalysis report contained in the record:  IU, Inspection Unit, 30 October 2003, cocaine.

2.  Article 15, dated 11 December 2003, wrongfully used cocaine (031030).  The punishment consisted of reduction to the grade of E-1, forfeiture of $575 per month for two months, 45 days of extra duty and restriction, (FG). 

3.  A negative counseling statement, dated 2 December 2003, for testing positive for cocaine (031030).



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.

2.  After a careful review of all the applicant’s military records and the issue submitted with the application, the characterization of service and reason for the discharge appear to be improper.  

3.  The service record confirms that when the unit commander notified the applicant of initiation of discharge proceedings on 16 December 2003, the applicant had completed a total of 6 years, 2 months, and 17 days of service, since his first enlistment on 30 September 1997.  In accordance with AR 635-200, the applicant was entitled to a hearing before an administrative separation board because he had 6 or more years of total active and reserve service on the date of initiation of recommendation for separation.  Per AR 635-200, this includes creditable service in any US military component, such as RA, ARNGUS, USAR (including IRR and Delayed Entry Program), USN, and USAF.  

4.  An administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects the applicant did not receive an administrative separation board.  Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.   

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

6.  Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF."  This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review	    Date:  5 June 2013	Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

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

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
Change Reason to:			Secretarial Authority
Change Authority for Separation:	AR 635-200, Chapter 5-3
Change RE Code to:		RE-1
Grade Restoration to:		NA
Other:					Change Separation Program Designator (SPD) to JFF

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)		AR20130001085



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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