IN THE CASE OF:  	Mr. 

      BOARD DATE:  	31 July 2013

      CASE NUMBER:  	AR20130002342
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the former Service Member’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 the results of a command directed urinalysis into the discharge process.  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.  However, the Board found the reason for discharge was 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 applicants (herein, referred to as the applicant), the parents of a deceased former Service Member, request to upgrade the characterization of the former Service Member’s service from under other than honorable to general, under honorable conditions.

2.  The applicant states, in effect, that as parents, they are requesting for an upgrade so that possibly, their son, a deceased former Service Member’s children may have some chance to obtain their father’s benefits.  The former Service Member was deceased on 5 July 2012.  He was an Iraq veteran.  The combat service aggravated his mental health that was never the same after serving in Iraq, and some minor medical issues, as well.  He suffered for many years with PTSD.  He never received any compensation from VA, only healthcare.  His parents feel that his PTSD would have been dealt with differently in the military, and then maybe he would not have received the current type of discharge.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	28 January 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	8 March 2010
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	HHC, 2nd BCT (Rear) (Provisional), Fort Drum, NY  
	f.	Current Enlistment Date/Term:	17 May 2007, 6 years
	g.	Current Enlistment Service:	2 years, 9 months, 22 days
	h.	Total Service:	7 years, 2 months, 4 days
	i.	Time Lost:	None
	j.	Previous Discharges:	USAR (010727-011002) / NA
			RA      (011003-031105) / GD
			RA      (050414-070516) / HD 
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	112
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (070718-071113)
	q.	Decorations/Awards:	AGCM; NDSM; ICM-CS; GWOTSM; ASR; OSR; CIB
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		

The former Service Member enlisted in the Regular Army on 14 April 2005 and reenlisted on 17 May 2007, for a period of 6 years.  He was 24 years old at the time of entry in 2005, and had a high school equivalency (GED).  He served in Iraq.  His record documents no acts of valor or significant achievement.  In consideration of his previous service, his total service shows he completed 7 years, 2 months, and 4 days of active duty service (note that his record of service from 3 October 2001 through 5 November 2003 indicates 17 days of time lost with no further information).

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the former Service Member’s service record shows that on 23 February 2010, the unit commander notified the former Service Member of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—commission of a serious offense, for disorderly conduct and being taken to a hospital for suspicion of drug overdose (091014); wrongfully using cocaine (090515-090519); and wrongfully using cocaine (081212-071214), for which the separation authority retained him on active duty.

2.  Subsequently, the unit commander recommended the former Service Member’s discharge with an under other than honorable conditions characterization of service and advised the former Service Member of his rights.

3.  On 24 February 2010, the former Service Member waived his right to legal counsel, acknowledged that he understood the impact of the discharge action, voluntarily and unconditionally waived consideration of his case by an administrative separation 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 of the separation with under other than honorable conditions discharge.  

4.  On 3 March 2010, the separation authority approved the unconditional waiver request, waived further rehabilitation and directed the former Service Member’s discharge with a characterization of service of under other than honorable conditions.

5.  The former Service Member was discharged from the Army on 8 March 2010, with a characterization of service of under other than 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 and an RE code of 4. 

6.  The former Service Member’s service record does not contain any evidence of unauthorized absences or time lost for this period of service under review. 

EVIDENCE OBTAINED FROM THE FORMER SERVICE MEMBER'S RECORD:

1.  There several positive urinalysis reports contained in the record:  

* CO, Command Directed, 19 May 2009, cocaine 
* A repeated positive detail report, dated 1 June 2009
* IR, Random Sample, 14 December 2007, cocaine
2.  Article 15, dated 20 August 2009, wrongful use of cocaine (090515-090519).  The punishment consisted of reduction to the grade of E-1, forfeiture of $699 per month for two months, 45 days of extra duty and restriction, oral reprimand, (FG). 

3.  Article 15, dated 30 June 2008, wrongful use of cocaine (0701212-071214).  The punishment consisted of reduction to the grade of E-1, forfeiture of $670 per month for two months (suspended), 45 days of extra duty, 45 days of restriction (suspended), (FG). 

4.  Letter, dated 17 August 2009, that states the former Service Member was suffering from alcoholism and PTSD.

5.  Nine negative counseling statements dated between 14 January 2008, 14 October 2009 and 7 January 2010, for testing positive for cocaine, notifying the former Service Member of separation action, returning from drug rehabilitation hospital, being arrested for being under the influence of narcotics and disorderly conduct, pending UCMJ, attending inpatient rehabilitation program, having a positive urinalysis, and missing formation.

6.  A Serious Incident Report, dated 14 October 2009, that indicates the former Service Member was arrested for disorderly conduct and self over-medication, and transported by ambulance to a hospital.

7.  An MP preliminary report, dated 14 October 2009, that listed the former Service Member as a person interviewed for a complaint that reported two males being intoxicated, and requests for ambulances.

8.  An MP preliminary report, dated 12 January 2008, that indicates the former Service Member was the subject of an investigation for domestic violence.

9.  An MP Report dated 26 January 2008, that indicates the former Service Member was the subject of an investigation for controlled substance violations, cocaine.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided the former Service Member’s certificate of death, dated 5 July 2012; DD Forms 214 for service under current review and one, dated 5 November 2003, for previous service; and VA Rating Decision correspondence, dated 27 April 2012. 

POST-SERVICE ACTIVITY: 

The applicant did not provide any evidence 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.  After a careful review of all the former Service Member’s military records, the issues and documents submitted with the application, the characterization of service appears to be improper.  

2.  The record confirms that on 19 May 2009, the applicant was given a command directed urinalysis (CO) and he tested positive for cocaine.  On 20 August 2009, the applicant accepted nonjudicial punishment for wrongfully using cocaine based on that urinalysis.  His punishment for this offense was reduction to the grade of E-1, forfeiture of $699.00 per month for two months, 45 days of extra duty and restriction, and oral reprimand.

3.  If the test basis for the urinalysis was CO, as stated on the collection sheet, then the Article 15 was improper.  There is no indication in the Chapter paperwork that the command recognized that the “Command Directed Urinalysis” could not be used as the basis for the Article 15.  Further, there is no indication the command believed the urinalysis was improperly coded “CO.”  There are also no CID reports.  However, the counseling statement, dated 2 June 2009, indicates on 19 May 2009, the former Service Member submitted a command directed urinalysis that tested positive for cocaine, and was further scheduled to speak with CID on 2 June 2009.  

4.  Therefore, it appears the urinalysis was properly coded CO, the Article 15 was improperly administrated based on the limited use evidence, and the discharge was improperly characterized given the introduction of the limited use evidence in the Chapter paperwork.  However, the question whether the urinalysis was properly coded is a question of fact for the Army Discharge Review Board to determine given the contrary conclusions that could be drawn by the command’s treating the urinalysis as though it was not limited use evidence.  The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded.  

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 full relief by upgrading the applicant’s characterization to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.   

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review	  Date:  31 July 2013        Location: Washington, DC

Did the applicant for the former Service Member Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

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:		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)		AR20130002342



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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