IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 July 2013

      CASE NUMBER:  	AR20130002957
___________________________________________________________________________

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 and a change to the narrative reason. 

2.  The applicant states, in effect, that he believes his chapter was not handled correctly.  Instead of trying to help him with his problem and rehabilitate him, he was looked down on and put in a category which separated him from his fellow Soldiers.  He was hazed by senior ranking NCOs with name calling and dirty looks every day after his incident.  He was a married Soldier and was restricted to the barracks that kept him from seeing his wife and daughter which led to the divorce they are now going through.  He agrees that what he did was wrong and is not acceptable in the military, but he doesn’t think he deserved a misconduct discharge. Aside from using drugs and alcohol he was an exceptional Soldier.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 February 2013		
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			21 June 2012		
d. Reason/Authority/SPD/RE Code:	Misconduct, (Drug Abuse), AR 635-200          								Chapter 14-12c(2), JKK, RE-4	
e. Unit of assignment:			Delta Company, 3rd Battalion, 15th Infantry 							Regiment, 4th Infantry Brigade Combat Team       						Fort Stewart, GA			
f. Current Enlistment Date/Term:	23 July 2008, 5 years
g. Current Enlistment Service:	3 years, 10 months, 29 days
h. Total Service:			3 years, 10 months, 29 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	25U10, Signal Support Systems Specialist
m. GT Score:				95
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (100712-110711)
q. Decorations/Awards:		ARCOM, AAM, AGCM, NDSM, ICM-2CS, GWOTSM 							ASR, OSR, 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 23 July 2008 for a period of 5 years.  He was      19 years old at the time of entry and a high school graduate.  He served in Iraq, earned an ARCOM, AAM, and AGCM, and completed 3 years, 10 months, and 29 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 4 June 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c (2), Misconduct-Abuse of Illegal Drugs; specifically for wrongfully using marijuana between 19 February 2012 and 21 March 2012.
	
2.  Based on the above misconduct, the commander recommended a general, under honorable conditions discharge.

3.  On 4 June 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his own 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 5 June 2012, the separation authority approved and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 21 June 2012, under Army Regulation 635-200, Chapter 14-12c (2), with a general, under honorable conditions discharge, a SPD code of JKK, and a RE code of 4.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is a positive urinalysis report contained in the record coded, IU, Inspection Unit, dated 21 March 2012, marijuana.

2.  An Article 15, dated 7 May 2012, for wrongfully using marijuana a schedule IV controlled substance between 21 February 2012 and 21 March 2012.  The punishment consisted of reduction to the grade of E-1, forfeiture of $745 pay per month for two months, 45 days of extra duty and restriction, (FG). 

3.  A counseling statement dated 20 April 2012, recommending the applicant for discharge.



      
EVIDENCE SUBMITTED BY THE APPLICANT:

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

POST-SERVICE ACTIVITY: 

None were provided 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.

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

2.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special 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 that ultimately caused his discharge from the Army.

3.  The applicant contends his chapter was not handled properly because he was not afforded the opportunity for a rehabilitation transfer; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

4.  The applicant contends that he should have been discharge under chapter nine and a change in the reason for the discharge is appropriate.  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 drug offenses.  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.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.  

6.  The applicant contends he was restricted to the barracks, looked down on and hazed by senior NCOs.  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.  

7.  Therefore, the reason for discharge and the characterization being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review		Date:  17 July 2013          Location: Washington, DC

Did the Applicant Testify?  No 

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)		AR20130002957



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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