IN THE CASE OF:  	

      BOARD DATE:  	3 July 2013

      CASE NUMBER:  	AR20130003111
___________________________________________________________________________

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.  He states, in effect, he earned two Army Commendation Medals (ARCOM) and four Army Achievement Medals (AAM) for his hard work and dedication.  He used marijuana because he thought it would help cope with his family problems.  He has not used drugs since his discharge.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 February 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			12 April 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:			E Troop, 3-17th Cavalry Regiment, Fort Stewart, GA 
f. Current Enlistment Date/Term:	11 February 2010, 3 years
g. Current Enlistment Service:	2 years, 2 months, 2 days
h. Total Service:			5 years, 8 months, 5 days
i. Lost time:				None
j. Previous Discharges:		RA (060808-100210)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92G10, Food Service Operations
m. GT Score:				94
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		ARCOM-2, AAM-4, NDSM, GWOTSM, KDSM, ASR
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 8 August 2006, for a period of 3 years and 17 weeks.  He was 18 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.  He reenlisted on 11 February 2010, for a period of 3 years and was 19 years old at the time.  His record also shows he earned several awards including an ARCOM-2, AAM-4, and achieved the rank of SPC/E-4.  He was serving at Fort Stewart, GA, when his discharge was initiated.  



SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 5 January 2012 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.  Specifically for the following offenses:

     a.  being in the possession of spice (110913)

     b.  testing positive for marijuana x 2 (110921, 111216)

     c.  threatening his spouse with a weapon (111016) he previously denied owning to the Squadron Command Sergeant Major (111011)

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of her rights.

3.  On 11 January 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service no less favorable than honorable conditions 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 senior commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 31 January 2012, the separation authority disapproved the applicant’s conditional waiver request and referred the case to an administrative separation board.

5.  On 16 February 2012, the applicant was notified to appear before an administrative separation board and advised of her rights.  

6.  On 14 March 2012, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with a characterization of service of general, under honorable conditions.

7.  On 2 April 2012, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

8.  The applicant was discharged from the Army on 12 April 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. 

9.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains two positive urinalysis reports as follows:

     a.  PO (Probable cause), date collected 13 September 2011, marijuana 

     b.  IU (Inspection Unit), date collected 16 December 2011, marijuana

2.  An Article 15, dated 11 October 2011 for willfully disobeying a lawful order from the Secretary of the Army, prohibiting substances (spice in variations), by wrongfully possessing spice (110913); the punishment consisted of reduction to E-1, forfeiture of $733 pay x 2 months (suspended), extra duty for 45 days, (FG).

3.  The record of evidence contains a Military Police Report, dated 20 September 2011, which indicated the applicant was under investigation for possessing spice.

4.  He received three negative counseling statements dated, 21 September 2011, 18 October 2011, and 29 December 2011, for testing positive for marijuana x 2 and violating a no contact order.

EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided a DD Form 293; two Certificates of Achievement; Certificate of Completion; DD Form 214; and Discharge Orders 096-0006.

POST-SERVICE ACTIVITY: 

The applicant stated he attends the Art Institute of Phoenix working on his BA in culinary management.

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 for violations of the Uniform Code of Military Justice (UCMJ), two positive urinalysis reports, three negative counseling statements and a Military Police Report.

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

4.  The applicant contends he earned two ARCOMs and four AAMs for his hard work and dedication.  The applicant’s service accomplishments and the quality of his service prior to the incident which caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to overcome the reason for discharge and characterization of service granted.  

5.  The applicant further contends he used marijuana because he thought it would help him cope with his family problems.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

6.  The applicant also contends he has not used drugs since his discharge.  The applicant is to be commended for his effort.  However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process.

7.  Furthermore, the applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, these accomplishments did not overcome the reason for discharge and characterization of service granted.  

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

9.  Therefore, the reason for 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:   3 July 2013             Location: Washington, DC

Did the Applicant Testify:  No

Counsel:  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 RE Code to:			No Change	
Grade Restoration to:			NA
Change Authority for Separation:		No Change
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)		AR20130003111



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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