IN THE CASE OF:  Ms. 

      BOARD DATE:  	28 August 2013

      CASE NUMBER:  	AR20130003341
___________________________________________________________________________

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 characterization was improper.  

2.  The record shows the government introduced into the discharge packet the results of a biochemical test which was coded RO (Rehabilitation) and that it was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant’s rehabilitation program.  Use of this information mandates award of an honorable characterization of service.  

3.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was proper and equitable and the Board voted not to change it.




      
      
      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 to upgrade her characterization of service from general, under honorable conditions to fully honorable, and to change the narrative reason for her discharge.

2.  The applicant states, in effect, that she is never shy telling others about losing control of her life, not to mention the sexual harassment she was subjected to.  The medical neglect hurt her a lot, but when her children were neglected, that was her limit.  She fell out of a five-ton truck and was told she was fine and to return to work.  She thought she was going crazy, because the doctor said there was nothing wrong with her.  Up until the day she was discharged, she was told that there was nothing wrong with her.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	13 February 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	26 August 2008
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	HHC, 25th STB, Schofield Barracks, HI
	f.	Current Enlistment Date/Term:	13 April 2006, 3 years, 18 weeks
	g.	Current Enlistment Service:	2 years, 4 months, 14 days
	h.	Total Service:	2 years, 4 months, 14 days
	i.	Time Lost:	None 
	j.	Previous Discharges:	None 
	k.	Highest Grade Achieved:	E-3 
	l.	Military Occupational Specialty:	88M10, Motor Transport Operator
	m.	GT Score:	91
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (061119-071024)
	q.	Decorations/Awards:	ARCOM; NDSM; ICM; GWOTSM; ASR; OSR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 13 April 2006 for a period of 3 years and 18 weeks.  She was 30 years old at the time of entry and had a high school equivalency (GED).  She served in Iraq.  She earned an ARCOM and completed 2 years, 4 months, and 14 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 7 July 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense).  Specifically for the following offenses:  

a. wrongfully using marijuana (080228-080331)
b. wrongfully using marijuana (080406-080506)

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

3.  On 9 July 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on her 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 28 July 2008, 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 26 August 2008, 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 evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are two positive urinalysis reports contained in the record:
	IR, Inspection Random Sample, 31 March 2008, marijuana 
	IR, Inspection Random Sample, 6 May 2008, cocaine, marijuana
	RO, Rehabilitation Testing, 7 May 2008, cocaine, marijuana

2.  Article 15, dated 15 May 2008, wrongfully using marijuana (080228-080331).  The punishment consisted of reduction to E-1, forfeiture of $673.00 pay per month for two months (suspended), 45 days of extra duty, (FG).

3.  Article 15, dated 16 June 2008, wrongfully using marijuana (080406-080506).  The punishment consisted of 45 days of extra duty, (FG). 

4.  DA Form 2627-2, Record of Supplementary Action under Article 15, UCMJ, dated 17 June 2008, for wrongfully using marijuana (080406-080506).  The suspended punishment of forfeiture of $673.00 pay per month for two months imposed on 15 May 2008, was vacated, (FG).

5.  There is no record of any negative counseling statement.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided page 2 of VA Form 21 (Exam. For Housebound Status or Permanent Need for Regular Aid and Attend), dated 5 October 2012; VA claim and decision documents; medical health records, dated 24 August 2007 through 24 June 2008 with sick slips, dated 10 and 16 June 2008; page 1 of counseling statement, dated 15 April 2007; sworn statement, dated 20 June 2008, rendered by Mr. M, applicant’s brother; DD Form 2870 (Authorization for Disclosure of Medical or Dental information), dated 25 August 2008; sworn statement, dated 20 June 2008, rendered by the applicant (26 pages of 27). 

POST-SERVICE ACTIVITY: 

The applicant provided none. 

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.  After a careful review of all the applicant’s military records, the issues, and documents submitted with the application, the characterization of service appears to be improper.  

2.  The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 7 May 2008, which was coded RO (Rehabilitation) and that it was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant’s rehabilitation program.  Use of this information mandates award of an honorable characterization of service.  

3.  The records show the proper discharge and separation procedures were not followed in this case.  

4.  Regarding the applicant’s contention that the narrative reason for the discharge be changed because of her medical condition, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge.  However, the narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

5.  Given the above, the characterization of service being improper, recommend the Board grant full relief by upgrading the applicant’s characterization to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.  









SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review       Date:  28 August 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  5	No Change:  0
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:	Honorable
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)		AR20130003341



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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