IN THE CASE OF:  	Mr. 

      BOARD DATE:  	5 June 2013

      CASE NUMBER:  	AR20130001987
___________________________________________________________________________

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 of his discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, he needs an upgrade of his discharge to help him obtain employment.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		28 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			13 November 2009
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			HHC, 3-4th  Infantry Battalion, APO AE
f. Current Enlistment Date/Term:	13 July 2006, 6 years, 21 weeks
g. Current Enlistment Service:	3 years, 4 months, 1 day
h. Total Service:			3 years, 4 months, 1 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92F10, Petroleum Supply Specialist
m. GT Score:				114
n. Education:				HS Graduate
o. Overseas Service:			Germany
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR, MUC
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 13 July 2006; for a period of 6 years, 21 weeks.  He was 18 years old at the time of entry and was a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 92F10, Petroleum Supply Specialist.  He was serving in Germany, when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements and he had no combat service.






SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 16 October 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-abuse of illegal drugs, for wrongfully using marijuana (090603-090702); and he had two previous incidents of wrongfully using marijuana (090124-090223) and (090104-090203).

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 16 October 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board (although he was not entitled to a board) 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 with a general, under honorable conditions discharge.  

4.  On 27 October 2009, 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’s record does not contain any documented evidence of unauthorized absences or lost time.

6.  The applicant was discharged from the Army on 13 November 2009, 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 (drug abuse), a Separation Program Designator code (SPD) of JKK, with an RE code of 4. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are three positive urinalysis reports contained in the record and coded as follows:

     a.  IR (Inspection Random), of 2 July 2009, marijuana

     b.  CO (Competence for Duty), 23 February 2009, marijuana

     c.  CO (Competence for Duty), 2 February 2009, marijuana

2.  He received four negative counseling statements that were done between on 15 April 2009 through 29 September 2009, for failing two urinalysis tests.  

3.  A Field Grade Article 15, dated 4 May 2009, for wrongfully using Marijuana x 2 (090124-090223), (090104-090203); the punishment consisted of reduction to E-1, forfeiture of $647 pay x 2 months (suspended), extra duty for 45 days and restriction for 45 days.

4.  The record contains a Military Police Report, dated 25 March 2009, which indicated the applicant was under investigation for controlled substance violations, use of marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided a DD Form 293; Letter, Chief, Congressional and Special Actions/with allied Congressional Documents; DD Form 214; and Discharge Orders 301-0026. 

POST-SERVICE ACTIVITY:  

The applicant did not provide any with the application.

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, the issues and documents 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 an Article 15 for a violation of the Uniform Code of Military Justice and four negative counseling statements.

3.  Furthermore, the applicant’s service record contains a DD Form 2624 (Specimen Custody Document for Drug Testing) that shows a 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 the unit commander’s memorandum for record dated 15 April 2009, which indicated the unit conducted a 100% urinalysis test on 3 February 2009 and 23 February 2009.  

4.  In view of the aforementioned, it appears the CO codes used on the DD Forms 2624 were in all likelihood incorrect and should have been coded IU for “Inspection Unit” 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.

5.  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.

6.  The applicant contends he needs an upgrade of his discharge to help him obtain employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

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

8.  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:  5 June 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





















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)		AR20130001987



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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