IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 August 2013

      CASE NUMBER:  	AR20130004783
___________________________________________________________________________

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 of service 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 full 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 an upgrade of his discharge from general, under honorable conditions to honorable.

2.  He states, in effect, his DD Form 214 indicated in block 18 he had not completed his first full term of service and he reenlisted on 12 April 12.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			12 October 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:			687th Engineer Company, 46th Engineer Battalion, 						Fort Polk, LA
f. Current Enlistment Date/Term:	12 April 2012, 5 years
g. Current Enlistment Service:	6 months, 1 day 
h. Total Service:			3 years, 5 months, 1 day
i. Lost time:				None
j. Previous Discharges:		RA-(090512-120411)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	12N10, Horizontal Construction
m. GT Score:				102
n. Education:				11 years
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		AAM, NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant's record shows he enlisted in the Regular Army on 12 May 2009, for a period of 4 years.  He was 17 years old at the time of entry and was less than a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 12N10, Horizontal Construction.  He reenlisted on 12 April 2012, for a period of 5 years and was 20 years old at the time.  His record also shows he had no combat service; however, he earned an AAM.  He was serving at Fort Polk, LA, when his discharge was initiated.  He achieved the rank of SPC/E-4.  




SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 4 September 2012, 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 for wrongfully using oxymorphone (121212).

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

3.  On 5 September 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.

4.  On 4 October 2012, 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’s record of service does not contain any documented evidence of unauthorized absences or lost time.

6.  The applicant was discharged from the Army on 12 October 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. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 11 June 2012, for wrongfully using oxymorphone (121212); the punishment consisted of reduction to E-1, forfeiture of $745 pay x 2 months (suspended), extra duty for 45 days and restriction for 45 days, (FG).  Of note, the date of the drug use in the Article 15 is erroneous.

2.  He received a negative counseling statement dated, 17 May 2012, for testing positive for oxymorphone.

3.  The record of evidence contains a positive urinalysis report coded RO, dated 12 December 2011.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided two DD Forms 293; two self authored statements, two character statements, two support statements, DA Form 4856 (Developmental Counseling Form), two pages, six Memoranda, appeal of Article 15, DD Form 4/1 Enlistment/Reenlistment Document, six pages, Memorandum, Eligibility and Trainability Changes, Oath of Reenlistment, Honorable Discharge Certificate, and three DD Forms 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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.  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 12 December 2011, which was coded RO (Rehabilitation) and 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.  Therefore, 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:  9 August 2013        Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  NA

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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20130004783



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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