IN THE CASE OF:	

      BOARD DATE:  	3 July 2013

      CASE NUMBER:  	AR20130003536
___________________________________________________________________________

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 to be 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 Separation Program Designator Code (SPD).

2.  He states, in effect, that he was discharged because he failed a drug test.  He grew up in a rough neighborhood and was already doing drugs before he joined the military.  While in the Army his grandmother that raised him past away and when the opportunity to use drugs presented itself again, he relapsed.  Since his discharge he has changed his life drastically, he is married, has children, and has changed his life for the better.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		15 February 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			13 May 2005
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:			F Co, 710th Brigade Support Bn, Fort Drum, NY
f. Current Enlistment Date/Term:	3 February 2004, 3 years and 7 months (extended)
g. Current Enlistment Service:	1 year, 3 months, 11 days 
h. Total Service:			1 year, 3 months, 11 days
i. Lost time:				None 	
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2	
l. Military Occupational Specialty:	62B10, Construction Equipment Operator
m. GT Score:				110
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None 
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant's service record shows he enlisted in the Regular Army on 13 May 2005 for a period of 3 years and later extended it by 7 months.  He was 18 years old at the time he entered the Service and was a high school graduate.  His record documents no acts of valor or significant achievement.  


SEPARATION FACTS AND CIRCUMSTANCES

1.  On 8 April 2005, 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, by reason of misconduct, for the commission of a serious offense; specifically for receiving a Field Grade Article 15 on 10 September 2004, for wrongfully using cocaine.  

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

3.  A document in the record indicates the applicant waived 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 26 April 2005, 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 14-12c, for misconduct-commission of a serious offense.

5.  The applicant was separated from the Army on 13 May 2005, under Army Regulation 
635-200, Chapter 14-12c, for misconduct, with a general, under honorable conditions discharge, an SPD code of JKQ and an RE code of 3.

6.  The applicant’s service record does not reflect any lost time.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Field Grade Article 15, issued on 10 September 2004, for wrongfully using cocaine (040704-040804).  His punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $597.00 per month for 2 months (suspended), 45 days of extra duty and restriction.

2.  A positive urinalysis dated 4 August 2004, coded IR (Inspection Random), for cocaine.

3.  Two negative counseling statements dated 4 August 2004 and 27 September 2004, for a positive urinalysis, failure to report, and disobeying a lawful order.

4.  A Military Police Report dated 12 March 2005, which indicates the applicant was the subject of an investigation for having an altered military identification card.

EVIDENCE SUBMITTED BY THE APPLICANT: 

DD Form 214.

POST-SERVICE ACTIVITY: 

Since his discharge he has changed his life drastically and for the better.  He is married and has children.

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), in effect at the time, provided 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his discharge and a change to the SPD code 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 or to change the reason for his discharge and the SPD code.  

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 a Field Grade Article 15 for a serious violation of the Uniform Code of Military Justice.  

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 contends that he grew up in a rough neighborhood and was already doing drugs before he joined the military.  However, this issue is not a matter upon which the Army Discharge Review Board grants a change in the discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process.

5.  The applicant also contends that while in the Army, his grandmother that raised him past away and when the opportunity to use drugs presented itself again, he relapsed.  While the applicant may believe his stress at home and work was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

6.  Moreover, the applicant states since his discharge he has changed his life drastically, he is married, has children, and has changed his life for the better.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in reviewing the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  

7.  The applicant has also requested a change in his SPD Code.  The record indicates the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct," and the separation code is "JKQ."  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 or the associated SPD code to be entered under this regulation.  
8.  The records show the proper discharge and separation authority procedures were followed in this case.  

9.  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:  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:			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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20130003536

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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