IN THE CASE OF:  

      BOARD DATE:  	26 June 2013

      CASE NUMBER:  	AR20130001561
___________________________________________________________________________

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 to his general, under honorable conditions discharge to honorable and a change to his RE code. 

2.  The applicant states, in effect, that the injustice and corrections that need to be made are based on the fact his chain of command had an open door policy that was supposed to be across the board; which his NCO’s did not allow him to utilize properly. 

His first infraction occurred during the time frame when spice was unregulated.  He was caught using Spice and admitted to what he did; consequently, he received a Company Grade Article 15 and completed all of his punishment.  He then deployed to Afghanistan with his unit.  During his deployment his father passed away and he returned home to bury his father.  He also, married during the same time frame and found out his wife was pregnant.  Although, he found himself in a very stressful situation he finished his combat tour and came back successful.  While on tour he received some certificates of appreciation from other units.    

His assigned military occupational specialty (MOS) was as a 68E10, Dental Assistant.  He was assigned to a brigade slot, and worked as part of a two man team with a captain.  There was only one other dental team available which was located in Bagram in our Province; consequently, he saw 4,500 patients during his tour. 

While transitioning back to the United States he had a lot going on in his life.  He was still in despair from the loss of his father, he was supporting his first daughter financially; on returning home he also found that his family was having financial problems which became his; and he and his new wife were expecting a child.  His chain of command was fully aware of his problems and made him a high risk Soldier; consequently, he had to sign some paperwork stating he would not harm himself or others.  It was then that he made an honest mistake and chose to use marijuana as a stress release from his problems.  He tested positive on a urinalysis test and admitted his actions to his chain of command.  He was referred to and completed ASAP. 

He then requested to utilize the commander’s open door policy to speak to him.  After waiting over six weeks he was taken off maternity leave with his wife and told to start clearing.  He still had not had an opportunity to speak with the commander.  He was later told the commander had made his decision without talking to him.

The problem he has with his case is that; although, he admitted to his actions, corrected his actions and had others speak on his behalf his chain of command avoided speaking with him so they could continue the discharge process.  He feels his discharge was un-just and overly harsh.

While deployed he became aware that five Soldiers in the medical field were charged and received Article 15’s for stealing and using morphine and another controlled substance.  Two NCOs were court-martialed; two other Soldiers received 45 days of extra duty, loss of pay and a reduction in rank; and one Solder was sent to ASAP for treatment.   

He feels as though his chain of command disregarded many Army codes, rules, and regulations; because, the five Soldiers should not have been allowed to stay in the medical field.  Although, he agrees that they should have been given a chance to keep their honor and career.  When his situation came about he asked for ASAP treatment, and a chance to keep his career so he could provide for his family and retain his honor as a Soldier.

He thinks something was wrong with the way his case was handled; because, it appeared to him that the results of his positive test were held so a new chain of command would take responsibility and make the final decision to discharge him.  It was the new chain of command that would not allow him to see the commander until the day of his release.  He has a problem with what happened; because, his offense was far less serious than the incident that occurred in Afghanistan; and he had well respected individuals speak on his behalf which was not taken into account.   

He asked his chain of command for a second chance and to be allowed to be retained.  However, they took his career and he lost his honorable discharge which affects his life as a civilian to this day.  He would like to serve his country again.  He is an honorable Soldier and has people that will vouch for him.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 January 2013			
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			17 April 2012	
d. Reason/Authority/SPD/RE Code:	Misconduct, Drug Abuse, AR 635-200,              								Chapter 14-12c(2), JKK, RE-4	
e. Unit of assignment:			Charlie Company, 94th Brigade Support Battalion 						4th Brigade Combat Team, 10th Mountain Division 						(Light Infantry), Fort Polk, LA			
f. Current Enlistment Date/Term:	7 July 2009, 6 years
g. Current Enlistment Service:	2 years, 9 months, 11 days
h. Total Service:			2 years, 9 months, 11 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	68E10, Dental Specialist
m. GT Score:				96
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Afghanistan (101020-111020)
q. Decorations/Awards:		AAM-2, NDSM, ACM-CS2, GWOTSM, ASR, OSR							NATO MDL
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 7 July 2009, for a period of 6 years.  He was      17 years old at the time of entry and a high school graduate.  He served in Afghanistan and earned two AAM’s and completed 2 years, 9 months, and 11 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 28 February 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c(2), Commission of a Serious Offense; specifically for smoking in the Battalion Headquarters’ bathroom while on duty as a staff duty runner, and wrongfully using marijuana.

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

3.  On 1 March 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 20 March 2012, the separation authority denied the rehabilitation transfer request; approved and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 17 April 2012, under Army Regulation 635-200, Chapter 14-12c(2), for misconduct (drug abuse), with a general, under honorable conditions discharge, a SPD code of JKK, and a RE code of 4. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 24 March 2010, for violating a lawful general regulation, to wit: army regulation 600-63, Chapter 7-3; in violation of Article 92, of the UCMJ on (100301).  The punishment consisted of forfeiture of $389.00 pay for one month (suspended) to be automatically remitted if not vacated before (101006), extra duty for 7 days, (CG). 

2.  Two negative counseling statements dated between 27 January and 2 March 2012, for separation counseling due to abuse of illegal drugs, and failure to follow instructions.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application with a self-authored statement, various copies of memorandums for record and character reference letters from the discharge proceedings, and a DD Form 214. 

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 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 was carefully considered.  However, after examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record confirms that 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 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.  By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violating the Uniform Code of Military Justice.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that he had good service which included his combat tour to Afghanistan.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge. 

5.  The applicant contends that he was having family issues that affected his behavior and ultimately caused him to be discharged.  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 such assistance before committing the misconduct which led to the separation action under review.  

6.  The applicant contends that other Soldiers who committed more serious offenses were not discharged.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

7.  The applicant contends his command violated their open door policy and held his positive urinalysis so a new command would be responsible for discharging him.  However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  

8.  The applicant has requested a change to the reentry code in order to rejoin the Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE Code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

9.  The records show the proper discharge and separation authority procedures were followed in this case.  

10.  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: Records Review	    Date:  26 June 2013      Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  0	No Change:  5
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)		AR20130001561

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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