IN THE CASE OF:  	

      BOARD DATE:  	29 May 2013

      CASE NUMBER:  	AR20130001156
___________________________________________________________________________

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 characterization was improper.  

2.  The record shows the government introduced into the discharge packet the results of a biochemical test which was coded RO (Rehabilitation) and that it was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant’s rehabilitation program.  Use of this information mandates award of an honorable characterization of service.  

3.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was proper and equitable and the Board 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 general, under honorable conditions discharge to honorable.

2.  The applicant states, in effect, he served a year in Iraq and was asked to return and he requested more down time before returning.  He is asking as a matter of justice that his discharge be upgraded so that he is able to utilize his Post 9/11 GI Bill benefits that he earned by his service in Iraq.  He realizes he gave an immature response when asked to return to Iraq; however, he was under pressure and just needed time to decompress.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 January 2003	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			8 November 2004	
d. Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-3	
e. Unit of assignment:			Battery C, 3-29th Field Artillery, Fort Carson, CO
f. Current Enlistment Date/Term:	12 February 2002, 3 years
g. Current Enlistment Service:	2 years, 8 months, 27 days
h. Total Service:			2 years, 8 months, 27 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	13B10, Cannon Crewmember
m. GT Score:				114
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (030408 - 040407)
q. Decorations/Awards:		NDSM, GWOTEM, GWOTSM, ASR, OSR-2
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 12 February 2002, for a period of 3 years.  He was 20 years old at the time of entry and a high school graduate.  He served in Iraq, and completed 2 years, 8 months, and 27 days of active duty service.




SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 21 October 2004, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12b, Pattern of Misconduct. Specifically for:

	a. wrongfully using marijuana between (021120 - 021220)
	b. violating a general order by consuming alcohol in Iraq (031215)
	c. being incapacitated for the performance of his duties (031215)
	d. wrongfully using cocaine between (040611 - 040616)

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

3.  On 21 October 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and 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 22 October 2004, the separation authority directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 8 November 2004, under Army Regulation 635-200, Chapter 14-12b, with a general, under honorable conditions discharge, an SPD code of JKA, and a RE code of 3.               

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There are 2 positive urinalysis reports contained in the record:
 	RO, Rehabilitation Testing, 16 June 2004, marijuana 
	RO, Rehabilitation Testing, 31 August 2004, marijuana

2.  Article 15, dated 20 February 2003; wrongfully used marijuana between (021120 - 021220), reduction to E-1, forfeiture of $575 pay per month for two months, extra duty and restriction for 45 days, (FG).

3.  Article 15, dated 29 January 2004, violated a lawful general order by wrongfully consuming alcohol (031215), as a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of his duties (031215) .  The punishment consisted of reduction to the grade of E-1, forfeiture of $575 pay per month for two months, 45 days of extra duty, (FG). 

4.  Article 15, dated 21 September 2004, wrongfully used cocaine, a controlled substance, reduction to E-1, forfeiture of $596 pay per month for two months, extra duty and restriction for 45 days, (FG). 
      
5.  Four negative counseling statements dated between 28 July 2004 and 28 September 2004, for failure of a urinalysis test, lost military ID card, consideration of chapter 14-12c, and failure to be at his appointed place of duty for the predetermined amount of time.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 293, order 307-0027, pre-separation counseling checklist, ERB, and two copies of a DD Form 214.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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.  After a careful review of all the applicant’s military records, the issue and documents submitted with the application, the characterization of service appears to be improper.  

2.  The record confirms the government introduced into the discharge packet the results of two biochemical tests conducted on, 16 June 2004 and 31 August 2004, which were coded RO (Rehabilitation) and that were part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant’s rehabilitation program.  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 full 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.   

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review		  Date:   29 May 2013         Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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 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)		AR20130001156



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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