IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 July 2013

      CASE NUMBER:  	AR20130002525
___________________________________________________________________________

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 and a change to the narrative reason for separation.

2.  He states, in effect, he took a urinalysis test which came back negative and the battalion commander decided he should be discharged from the Army.  His discharge prevents him from obtaining decent employment to become a productive member of society.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 February 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			4 May 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 	Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			204th Military Police Company, 519th Military Police 						Battalion, Fort Polk, LA
f. Current Enlistment Date/Term:	4 May 2009, 3 years, 21 weeks
g. Current Enlistment Service:	3 years, 1 day 
h. Total Service:			3 years, 1 day
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	92G10, Food Service Operations
m. GT Score:				119
n. Education:				HS Graduate
o. Overseas Service:			Haiti (100207-100601)
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, AFSM, HSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant's record shows he enlisted in the Regular Army on 4 May 2009, for a period of 3 years and 21 weeks.  He was 21 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 92G10, Food Service Operations.  The record does not contain any evidence of acts of valor or meritorious achievements.  He was serving at Fort Polk, LA, when his discharge was initiated and he achieved the rank of PFC/E-3.



SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 27 April 2012, 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.  Specifically for the following offenses:

     a.  receiving an Article 15 for using spice (1203)

     b.  receiving an Article 15 for failing to report and disrespecting a noncommissioned officer (1012)

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 27 April 2012, the applicant waived legal counsel, was advised of the impact of the discharge action, voluntarily 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.  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 4 May 2012, 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 and an RE code of 4. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 21 March 2012 for willfully disobeying a lawful order from BG C, forbidding the purchase, use or possession of intoxicating substances, spice, salvia divinorum and ivory wave, by wrongfully using spice (120102); the punishment consisted of reduction to E-1, forfeiture of $745 pay x 2 months, extra duty for 45 days, restriction for 45 days and an oral reprimand, (FG).

2.  An Article 15, dated December 2010 for failing to report, disrespecting a noncommissioned officer; the punishment consisted of reduction to E-1, forfeiture of $337 pay, extra duty for 14 days, and restriction for 14 days, (CG).  However, this document is not contained in the available record.  See the unit commander’s recommendation memorandum.  

3.  The record of evidence also contains two CID Reports of Investigation, dated 24 January 2012 and 8 March 2012, which indicated the applicant, was under investigation for possessing spice and paraphernalia.

4.  The applicant received a negative counseling statement dated 16 February 2012, for being recommended for punishment under Article 15.

EVIDENCE SUBMITTED BY THE APPLICANT: 

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

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.

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 14-12c(2), misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for separation was carefully considered.  However, after examining his military record, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.

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 two Article 15s for violations of the UCMJ, a negative counseling statement and two CID Reports of Investigation.

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

4.  The applicant requested a change to the narrative reason for separation.  However, 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, paragraph 14-12c(2), for misconduct (drug abuse).  The regulation further stipulates that no deviation is authorized.  

5.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.  

6.  The applicant contends he took a urinalysis test which came back negative and the battalion commander decided he should be discharged from the Army.  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.  

7.  The applicant further contends his discharge prevents him from obtaining decent employment to become a productive member of society.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.
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:  Records 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

















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)		AR20130002525



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1