IN THE CASE OF:  	
      
      BOARD DATE:  	10 May 2013

      CASE NUMBER:  	AR20130001213
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, and notwithstanding 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 under other than honorable conditions to honorable.  

2.  The applicant states, in effect, that he would like the characterization of his discharge to be changed from other than honorable to honorable.  He feels that the punishment did not fit the crime. He has experienced the punishment of his discharge in its entirety.  He has tried to inquire before.  He went to his local military advocate and the advocate wanted him to make a PTSD case out of his case.  The applicant disagreed because he didn’t want to be known as the off the wall, better watch out for this psychopath because he has PTSD.  After he declined the advocate’s offer he was told the advocate could not help him.  They shook hands and the applicant thanked him for his time and left his office.  He doesn’t want to cry about it but living with his discharge is getting more difficult as each day passes. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 January 2013						
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			23 October 2009	
d. Reason/Authority/SPD/RE Code:	Misconduct, (Serious Offense), AR 635-200 								Para 14-12c, JKQ, RE-4	
e. Unit of assignment:			C Company, 1st Battalion, 21st Infantry Regiment						2nd Stryker Brigade Combat Team, Schofield 							Barracks Hawaii			
f. Current Enlistment Date/Term:	23 June 2005, 4 years, 16 weeks
g. Current Enlistment Service:	4 years, 3 months, 15 days
h. Total Service:			4 years, 3 months, 15 days
i. Time Lost:				Military Confinement, 16 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				105
n. Education:				HS Graduate
o. Overseas Service:			SWA	
p. Combat Service:			Iraq (071206 - 090226)
q. Decorations/Awards:		AGCM, NDSM, ICM-CS, GWOTSM, ASR, OSR-2 							CIB
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 23 June 2005, for a period of 4 years, and       16 weeks.  He was 20 years old at the time of entry and a high school graduate.  He served in Iraq and completed 4 years, 3 months, and 15 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 26 August 2009, 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—commission of a serious offense (drugs), for wrongful possession of marijuana and drug paraphernalia (090611), wrongfully violating barracks policy, and miscellaneous positive drug results.

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 2 September 2009, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board.

4.  On 17 September 2009, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 28 September 2009, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than general, under honorable conditions.  The applicant 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 senior intermediate commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

6.  On 6 October 2009, the separation authority disapproved the applicant’s waiver request and directed the applicant to appear before an administrative separation board and advised of his rights.  

7.  On 7 October 2009, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.
  
8.  The separation authority’s memorandum approving the recommendation of the administrative separation board and directing the applicant’s discharge is not contained in the available case separation files.  Barring evidence to the contrary, the applicant’s discharge was properly executed and the presumption of regularity prevails in this case.

9.  The applicant was discharged from the Army on 23 October 2009, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, Paragraph 14-12c, AR 635-200, for Misconduct (Serious Offense), a Separation Program Designator Code (SPD) of JKQ and a RE code of 4. 

10.  The applicant’s record of service indicates 16 days of time lost for being confined from        7 August 2009 until 22 August 2009.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There are 3 positive urinalysis reports contained in the record:
	PO, Probable Cause, 11June 2009, (marijuana) 
	IR, Inspection Random, 3 January 2007 and 28 June 2009, (marijuana)
 	
2.  Summary Court-Martial, dated 6 August 2009, failing to obey a lawful order by wrongfully smoking a substance from a homemade bong (090718), the sentence consisted of 21 days confinement. 

3.  Article 15, dated 8 July 2009, for wrongfully possessing an unknown quantity of marijuana, a scheduled I controlled substance, reduction to E-1, forfeiture of $699 pay per month for two months, extra duty and restriction for 45 days (FG)

4.  A negative counseling statement dated 11 June 2009, for a military police dog finding marijuana and drug paraphernalia in his barracks room (090611).

5.  An MP Report dated 22 June 2009, that indicates the applicant was the subject of an investigation for controlled substance violations, marijuana, and possession of marijuana.  

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided an on-line application and 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.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  

2.  After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions based on the applicant’s length and quality of service to include his combat service.  The applicant served 4 years, 3 moths, and 15 days of a 4 year and 16 weeks enlistment, thus the preponderance of his service was honorable.

3.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 

4.  The service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4.  The discharge packet confirms the applicant was under the provisions of AR 635-200, paragraph 14-12c, for misconduct (serious offense).  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and a RE Code of 3.  

5.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.  Moreover, recommend the Board change block 27, reentry code to 3, as required by AR 635-5.  



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review	Date:  10 May 2013            Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  1	No Change:  4
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 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)		AR20130001213



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1