IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 July 2013

      CASE NUMBER:  	AR20130001650
___________________________________________________________________________

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 to be 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 from general, under honorable conditions to honorable.  

2.  The applicant states, in effect, that he would like his discharge upgrade because he would like to attend school, get a better job and move on with his life.   

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			28 September 2006
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4        
e. Unit of assignment:			5th Engineer Battalion-Forward, attached to HHC, 1st 						Engineer Brigade, Fort Leonard Wood, MO
f. Current Enlistment Date/Term:	8 March 2004, 3 years
g. Current Enlistment Service:	2 years, 6 months, 21 days
h. Total Service:			2 years, 6 months, 21 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	21B10, Combat Engineer
m. GT Score:				95
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (051111-060710)
q. Decorations/Awards:		NDSM, GWOTSM, ICM, 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 8 March 2004, for a period of 3 years.  He was 24 years old at the time of entry and a high school graduate.  He was serving at Fort Leonard Wood, MO, when his discharge was initiated.  The record does not show any significant achievements or meritorious awards.  






SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows that on 6 September 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for commission of a serious offense, abuse of illegal drugs, specifically for testing positive for the use of marijuana twice since May 2005. 

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 11 September 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his 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 of the separation with a general, under honorable conditions discharge.  

4.  On 12 September 2006, 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 28 September 2006, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with an RE code of 4.

6.  The service record does not show any lost time.  

7.  The record also contains a positive urinalysis coded as CO (Command Direct), dated 
27 July 2006.  

8.  The applicant’s service record contains a DD Form 2624 (Specimen Custody Document for Drug Testing) that shows the urinalysis test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty.”  The Limited Use Policy applies to this test basis, per AR 600-85.  However, the evidence of record contains a memorandum for record from the Rear Detachment First Sergeant dated 21 August 2006, that indicate the applicant had wrongfully used cocaine while in the latrine.  This would have given the unit commander probable cause to direct the urinalysis.  

9.  In view of the aforementioned, it appears the CO code used on the DD Form 2624 was in all likelihood incorrect and should have been coded PO for “Probable Cause” instead of CO for “Competence for Duty.”  If this was in fact a harmless error, then the rights of the applicant were not prejudiced by the error on file in this case.  The evidence in the record did not create a substantial doubt that the discharge would have been any different if the error had not been made.



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant received one Field Grade Article 15, dated 20 May 2005, for wrongfully using marijuana (between 050309-050329).  His punishment consisted of a reduction to E-1, forfeiture of $617.00 pay per month for one month, suspended, and 45 days of extra duty and restriction.

2.  The applicant received one Field Grade Article 15, dated 25 August 2006, for wrongfully using marijuana (between 060718-060727).  His punishment consisted of a reduction to E-1, forfeiture of $636.00 pay per month for two months, and 45 days of extra duty and restriction.

3.  Two negative counseling’s dated 17 August 2006, for receiving a positive urinalysis and notification of changing his Chapter from a 5-13 to a 14c.


EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 293 and DD Form 214.

POST-SERVICE ACTIVITY: 

None were stated 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.  However, after examining the applicant’s record of service, his military records, 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 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 abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by 2 Articles 15 for multiple violations of the Uniform Code of Military Justice and 2 negative counseling statements.

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

4.  The applicant contends that an upgrade of his discharge would allow him to attend school, get a better job and move on with his life.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

5.  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:  Record Review         Date:  10 July 2013               Location: Washington, DC

Did the Applicant Testify?  NA 

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:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA




















egend:
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)		AR20130001650



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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