IN THE CASE OF:	Mr. 

      BOARD DATE:  	4 October 2013

      CASE NUMBER:  	AR20130005097
___________________________________________________________________________

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 partial relief in the form of an upgrade of the applicant’s 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 his characterization of service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge.

2.  The applicant states, in effect, his request to change his discharge is because he was young and immature when an action he took resulted in early discharge from service.  He was very vulnerable due to certain situations in his life at the time after returning from a tour of duty in Iraq.  It adversely affected his decision making.  He has since matured and not been in any trouble.  He has been a law abiding citizen.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	11 March 2013 
	b.	Discharge Received:	General, Under Honorable Conditions 
	c.	Date of Discharge:	9 November 2004
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12c(2), 
			JKK, RE-4
	e.	Unit of assignment:	D Co, 16th Signal Bn, 3rd Signal Bde (Rear) 
			(Provisional), Fort Hood, TX
	f.	Current Enlistment Date/Term:	6 May 2002, 6 years
	g.	Current Enlistment Service:	2 years, 6 months, 4 days
	h.	Total Service:	2 years, 6 months, 4 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3 
	l.	Military Occupational Specialty:	31R10, Multichannel Transmission Systems 
			Operator/Maintainer
	m.	GT Score:	103
	n.	Education:	13 years 
	o.	Overseas Service:	SWA 
	p.	Combat Service:	Iraq (030406-040401)
	q.	Decorations/Awards:	ARCOM; NDSM; GWOTEM; 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 enlisted in the Regular Army on 6 May 2002, for a period of 6 years.  He was 21 years old at the time of entry and had a year of college.  He served in Iraq.  He earned an ARCOM and completed 2 years, 6 months, and 4 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 7 October 2004, 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. testing positive for cocaine (040831)
b. testing positive for marijuana (040617)

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 14 October 2004, the applicant consulted with 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 18 October 2004, 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 9 November 2004, 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, 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:

	RO, Rehabilitation Testing, 31 August 2004, cocaine 
	IU, Inspection Unit, 17 June 2004, marijuana

2.  Article 15, dated 12 August 2004, wrongfully using marijuana (040517-040617).  The punishment consisted of reduction to the grade of E-1, forfeiture of $596 per month for two months (suspended), 45 days of extra duty, (FG). 

3.  Two negative counseling statements, dated 2 August 2004 and 30 September 2004, for testing positive on 17 June 2004, for substance abuse, and again, on 31 August 2004.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no further evidence. 

POST-SERVICE ACTIVITY: 

The applicant states, in effect, he has been a law abiding citizen and has not been in any trouble since his discharge from the military.  

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 issue submitted with the application, the characterization of service appears to be improper.  In addition, the applicant’s request for a change to the reason for his discharge was carefully considered.  However, after examining the applicant’s service record and the issues submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for the discharge.  

2.  The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 31 August 2004, 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 record further 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 that ultimately caused his discharge from the Army.

4.  The applicant requests a change in the reason for the discharge.  However, 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, paragraph 14-12c(2), for drug offenses.  The regulation further stipulates that no deviation is authorized.  

5.  Furthermore, 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.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

6.  Further, the applicant contends that he was young and immature at the time of an incident that led to his discharge.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

7.  Notwithstanding the reason for the applicant’s discharge, the records show the proper discharge and separation procedures were not followed in this case because the government introduced into the discharge packet the results of a biochemical test, which was coded RO (Rehabilitation) that was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan, and its use mandates an honorable characterization of service.
8.  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:  4 October 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)		AR20130005097

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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