IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 September 2013

      CASE NUMBER:  	AR20130001189
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board noted that the government introduced a document into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse.  This is limited use information as defined in AR 600-85.  Use of this information mandates award of an honorable discharge.  Accordingly, the Board voted to change the characterization of service to honorable.  The Board found the reason for discharge to include the RE code were fully supported by the record 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, a change to the reentry code and the narrative reason for the discharge.

2.  The applicant states, in effect, that he was unjustly discharged.  He contends he informed his sergeant about his use of spice prior to receiving a drug test.  He self referred in an attempt to seek substance abuse assistance and as a result of his self-referral the information was used to discharge him.  He believes his discharge was a violation of the Army's limited use policy and should be changed.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			4 September 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:			E Co, 299th CS, Fort Riley, KS
f. Current Enlistment Date/Term:	9 October 2011, 4 years
g. Current Enlistment Service:	6 months, 26 days
h. Total Service:			3 years, 7 months, 6 days
i. Time Lost:				None
j. Previous Discharges:		RA-090129-111008/HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	91B10, Wheeled Vehicle Mechanic
m. GT Score:				134
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (101107-111106)
q. Decorations/Awards:		ARCOM, NDSM, ICM-w/CS, GWOTSM, 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 29 January 2009, for a period of 3 years and    25 weeks.  On 9 October 2011, he reenlisted for a period of 4 years.  He was 27 years old at the time of reenlistment and a high school graduate.  His record indicates he served in Iraq and that he was awarded the ARCOM.  At the time his discharge proceedings were initiated, he was serving at Fort Riley, KS.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 30 July 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, section III, paragraph 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs for the wrongful use of synthetic cannabanoids between (120320 and 120218).

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 8 August 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action 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 16 August 2012, 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 4 September 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, with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

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 coded; PO (Probable Cause), dated 18 April 2012, synthetic cannabanoids.

2.  A negative counseling statement dated 20 April 2012, directing a command directed ASAP evaluation.

3.  A copy of the applicant's Army Substance Abuse Program (ASAP) Enrollment form, indicating the type of referral as "Self" and "Command."

4.  A copy of a chronological report of medical care, indicating on 23 April 2012, 1 May 2012, and 16 May 2012, the applicant was a self referral for smoking spice. 

5.  A copy of the unit commander's memorandum for record, dated 16 August 2012, clarifying the circumstances of why the applicant was referred to Army Substance Abuse Program (ASAP).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a five page supplemental statement, the unit commander's memorandum of record, dated 18 April 2012, (Probable Cause Urinalysis and /or Breathalyzer), sworn statement, date 17 April 2012, self-authored chronological statement explaining events leading to his discharge, developmental counseling form, and a copy of his ASAP enrollment documents , 

POST-SERVICE ACTIVITY: 

None were 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.

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.  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 a document into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse.  This is limited use information as defined in AR 600-85.  Use of this information mandates award of an honorable discharge.

3.  The applicant requests that the narrative reason be changed to secretarial authority and the reentry code be changed to a 1.  However, 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.  The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), the narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK."  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 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.  

4.  Furthermore, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 4 as required by Army Regulation.

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

6.  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 and the RE code were fully supported by the record and remains both proper and equitable.   



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Record Review    Date: 23 September 2013    Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: Yes (redacted)

Witnesses/Observers:  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:	NA
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)		AR20130001189



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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