IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 June 2013

      CASE NUMBER:  	AR20130002946
___________________________________________________________________________

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 characterization from general, under honorable conditions to honorable.

2.  He states, in effect, he was unfairly discharged after completing his punishment after a positive urinalysis and being told he could finish the deployment; he was subsequently discharged.  He desires to return to the military and serve his country.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 February 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			23 February 2011
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			E Co, 3rd Brigade Combat Team (Rear) (Provisional) 						Fort Campbell, KY
f. Current Enlistment Date/Term:	4 July 2009, 5 years/Enlisted Record Brief (ERB) shows his expiration of term of service (ETS) as (140703)
g. Current Enlistment Service:	1 years, 7 months, 20 days 
h. Total Service:			4 years, 4 months, 19 days
i. Lost time:				None
j. Previous Discharges:		RA-(061005-090703)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	91B10, Wheeled Vehicle Mechanic
m. GT Score:				87
n. Education:				GED Certificate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (070927-081114)/Afghanistan (100215-101102)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, ICM-W/CS, ACM-W/CS, 						GWOTSM, ASR, OSR-2, CAB
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 5 October 2006, for a period of 3 years and 24 weeks.  He was 21 years old at the time with a GED Certificate.  He was trained in and awarded military occupational specialty (MOS) 91B10, Wheeled Vehicle Mechanic.  He reenlisted on 4 July 2009, for five years; however, the reenlistment contract is not contained in the available record and he was 23 years old at the time.  His record also shows he served two combat tours and earned several awards including an ARCOM, AGCM and CAB.  He was serving at Fort Campbell, KY, when his discharge was initiated.  He achieved the rank of SPC/E-4.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 28 January 2011, 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 (091223-100121). 

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 2 February 2011, the applicant waived 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 of the separation with a general, under honorable conditions discharge.  

4.  On 11 February 2011, 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 of service does not contain any documented evidence of unauthorized absences or lost time.

6.  The applicant was discharged from the Army on 23 February 2011, 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. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 14 April 2010 for wrongfully using marijuana (091223-100121); the punishment consisted of reduction to E-1, forfeiture of $723 pay x 2 months (suspended), extra duty for 45 days and restriction for 45, (FG).

2.  The record of evidence contains a positive urinalysis report coded IO (Inspection Other), dated 21 January 2010.

3.  The record of evidence also contains two negative counseling statements, dated               18 November 2010 and 29 November 2010 for debt avoidance and his pending separation action.


EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided a DD Form 293; support statement; AGCM Orders 018-020; DD Form 214; and Discharge Orders 048-0601.

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 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, positive urinalysis report and two negative counseling statements.

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 contends he was unfairly discharged after completing his punishment from an Article 15 he received for testing positive for marijuana and was told that he could finish the deployment; however, he was subsequently discharged.  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.  

5.  The applicant desires to return to the military and serve his country.  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.

6.  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:  28 June 2013          Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130002946



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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