IN THE CASE OF:	

      BOARD DATE:  	3 July 2013

      CASE NUMBER:  	AR20130003325
___________________________________________________________________________

Board Determination and Directed Action

1.  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 to be both proper and equitable and voted to deny relief.  
      
2.  However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, 27, and 28 contain erroneous entries.  

3.  The Board directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority:
      
      a. block 25, separation authority changed to AR 635-200, paragraph 14-12b, 
      b. block 26, separation code changed to JKA, 
      c. block 27, reentry code changed to 3,
      c. block 28, narrative reason for separation changed to Pattern of Misconduct  
      



      
      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, that he would like an upgrade of his discharge in order to receive Post 9/11 GI Bill benefits.  His colonel told him he would be able to upgrade his discharge without any problems.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		15 February 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			16 August 2004
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14-12c(2), JKK 						RE-4
e. Unit of assignment:			HHD, 544th Maintenance Bn, Fort Hood, TX
f. Current Enlistment Date/Term:	30 January 2002,  4 years
g. Current Enlistment Service:	2 years, 6 months, 17 days 
h. Total Service:			2 years, 6 months, 17 days
i. Lost time:				None 	
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	92G10, Food Service Operations Specialist
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (030330-040402) 
q. Decorations/Awards:		NDSM, GWOTEM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant's service record shows he enlisted in the Regular Army on 30 January 2002, for a period of 4 years; he was 18 years old at the time and a high school graduate.  He served a total of 2 years, 6 months and 17 days which included a 12-month combat tour in Iraq.  His record documents no acts of valor or significant achievement.  


SEPARATION FACTS AND CIRCUMSTANCES

1.  On 28 July 2004, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct; specifically for the following serious offenses:

      a. Received a Field Grade Article 15 on 29 June 2004, for wrongfully using marijuana
b. Received a Field Grade Article 15 on 20 December 2002, for wrongfully using marijuana

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 29 July 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 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 a general, under honorable conditions discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.

4.  On 8 August 2004, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct.

5.  The applicant was separated from the Army on 16 August 2004, under Army Regulation 635-200, Chapter 14-12c, for misconduct, with a general, under honorable conditions discharge, an SPD code of JKK and an RE code of 4.

6.  The applicant’s service does not contain any evidence of lost time.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Field Grade Article 15, issued on 29 June 2004 for wrongfully using marijuana (040404-040504).  His punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $596.00 per month for 2 months, 45 days of extra duty and restriction.

2.  Field Grade Article 15, issued on 20 December 2002, for wrongfully using marijuana (021013-021113).  His punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $552.00 for one month, 45 days of extra duty and restriction.

3.  Two positive urinalyses; the first one dated 13 November 2002, coded IR (Inspection Random) and the second urinalysis dated 4 May 2004, coded IU (Inspection Unit).  Both were positive for marijuana.

4.  CID Report dated 28 June 2004, that shows the applicant was the subject of an investigation for wrongfully using marijuana.
EVIDENCE SUBMITTED BY THE APPLICANT: 

None provided with the application.

POST-SERVICE ACTIVITY: 

None provided 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 his discharge was carefully considered.  However, after examining his military records and the issues 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 2 Field Grade Articles 15 for wrongfully using illegal drugs.  

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

4.  The applicant requests an upgrade of his discharge in order to receive GI Bill benefits to attend school.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

5.  Moreover, the applicant contends his colonel told him he would have no problem getting an upgrade of his discharge.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in the discharge characterization.  Changes may be warranted only if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable.

6.  The service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct, authority as AR 635-200, paragraph 14-12c(2), reentry code as 4, and SPD code of JKK.  However, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct.  

7.  Therefore, the characterization of service being both, proper and equitable, recommend the Board deny relief.  However, based on the approved Chapter documentation, recommend the Board make the following administrative corrections:  
      
      a. change block 25, separation authority to AR 635-200, paragraph 14-12b
      b. change block 26, separation code to JKA
      c. change block 27, reentry code to 3
      c. change block 28, narrative reason for separation to Pattern of Misconduct    

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  3 July 2013	       Location: Washington, DC

Did the Applicant Testify:	No

Counsel: 			None




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:			Yes
Change Characterization to:		No Change
Change Reason to:				Pattern of Misconduct
Change RE Code to:			RE-Code 3
Grade Restoration to:			NA
Change Authority for Separation:		AR 635-200, paragraph 14-12b, JKA
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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20130003325

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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