IN THE CASE OF:  	Mr. 

      BOARD DATE:  	4 October 2013

      CASE NUMBER:  	AR20130005383
___________________________________________________________________________

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.  Further, notwithstanding the propriety of the applicant's discharge, the Board noted certain administrative errors on the applicant's DD Form 214 and directed the following changes 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 eligibility (RE) code to 3,
d. 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 from under other than honorable conditions to general, under honorable conditions.  

2.  The applicant states, in effect, that he had issues with drugs and alcohol.  He asked for help several times and all he was told was go to post AA meetings.  He was originally supposed to get a Chapter 14c until he had a drug related offense.  He was a good Soldier until he started battling his addiction.  He asked several times to be put in an inpatient treatment facility and was denied.  He is currently in treatment now and would like to move on.  An upgrade would allow him to become a better citizen and help with his path to recovery. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		15 March 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			20 December 2006
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4        
e. Unit of assignment:			546th Area Support Medical Company, 36th Medical 						Evacuation Battalion, Fort Hood, TX
f. Current Enlistment Date/Term:	6 December 2005, 3 years	
g. Current Enlistment Service:	0 years, 10 months, 20 days
h. Total Service:			3 years, 0 months, 27 days
i. Time Lost:				57 days
j. Previous Discharges:		ARNG (030930-040301), NA									OAD (040302-040727), NA									ARNG (040728-051206), HD
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	68E10, Dental Specialist
m. GT Score:				109
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, 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 ARNG on 30 September 2003 for a period of 8 years.  He was 
21 years old at the time of entry and a high graduate.  He served for 2 years, 2 months and 7 days before enlisting in to the Regular Army on 6 December 2005 for a period of 3 years.  He was serving at Fort Hood, TX, when his discharge was initiated.  He had no special awards or meritorious achievements.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows that on 1 December 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for a pattern of misconduct for the following:
`
	a.  He was tried, convicted, and sentenced by Summary Court-Martial which convened on 17 October 2006 for violation of Article 86, UCMJ, AWOL; Article 91, UCMJ, willfully disobeying a NCO (x2); Article 128, UCMJ, assault; Article 134, UCMJ, disorderly conduct; and Article 134, UCMJ, communicating a threat.  He was sentenced to forfeit $849.00 and to be confined for 30 days.
	
	b.  CG Article 15 imposed on13 August 2006.  He was found guilty of:
willfully disobeying a NCO, this was in violation of Article 91, UCMJ, and assault, this was in violation of Article 128, UCMJ.  The punishment consisted of forfeiture of $299.00 restriction for 14 days, and extra duty for 14 days.

	c.  CG Article 15 imposed on 20 June 2006.  He was found guilty of wrongful prior indulgence in intoxicating liquor or drug; this was in violation of Article 134, UCMJ.  The punishment consisted of extra duty for 14 days.

	d.  FG Article 15 imposed on 5 April 2006.  He was found guilty of misconduct-abuse of illegal drugs, to wit: cocaine, this was in violation of Article 112a, UCMJ.  The punishment consisted of forfeiture of $636.00 pay per month for two months, restriction for 45 days, and extra duty for 45 days.

	e.  CG Article 15 imposed on 16 February 2006.  He was found guilty of drunk and disorderly, this was in violation of Article 134, UCMJ.  The punishment consisted of reduction to E-1, forfeiture of $297.00; extra duty and restriction for 7 days.

	f.  He received 7 event-oriented counselings:
	    
	    (1)  Abuse of illegal drugs (060926)
	    (2)  AWOL; insubordination, destruction of military property, disorderly conduct, 	    	          communicating threats (060921)
	    (3)  Detainment for disorderly conduct (060331)
	    (4)  Failure to report (060328)
	    (5)  Financial management x 3 (060307, 060323, and 060327)
2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.  

3.  On 5 December 2006, the applicant waived consulting 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 the separation with an under other than honorable conditions discharge.  

4.  On 15 December 2006, 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 20 December 2006, for misconduct (drug abuse), under the provisions of AR 635-200, paragraph 14-12c(2), with an SPD Code of JKK, and an RE code of 4.

6.   The service record shows a period of time lost for 57 days, AWOL (060814-060911) for
29 days; the mode of return is unknown and military confinement for 28 days (061017-061113).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A CG Article on 16 February 2006, for drunk and disorderly.  The punishment imposed consisted of a reduction to E-1, forfeiture of $297.00 pay per month for one month, restriction for 7 days and extra duty for 7 days.  

2.  A FG Article 15 on 5 April 2006, for abuse of illegal drugs.  The punishment imposed consisted of a forfeiture of $636.00 pay per month for two months, restriction for 45 days and extra duty for 45 days.  

3.  A CG Article 15 on 20 June 2006, for wrongful prior indulgence in intoxicating liquor or drug.   The punishment imposed consisted of 14 days extra duty.

4.  A CG Article 15 on 13 August 2006, for willfully disobeying a NCO and assault.  The punishment imposed consisted of a forfeiture of $299.00, restriction for 14 days and extra duty for 14 days.  

5.  A Military Police Report dated 12 April 2006, pertaining to the applicant being drunk and disorderly and possible alcohol poisoning.  

6.  A Military Police Report dated 6 May 2006, pertaining to the applicant displaying suicidal ideations and terroristic threats.

7.  A Summary Court-Martial adjudged on 17 October 2006, for going AWOL, willfully disobeying a NCO (x2); assault; disorderly conduct and communicating a threat.  He was sentenced to forfeit $849.00 and to be confined for 30 days.

8.  Numerous negative counseling covering the period 7 March 2006 through 26 September 2006, for Abuse of illegal drugs, AWOL; insubordination, destruction of military property, disorderly conduct, communicating threats, detainment for disorderly conduct, failure to obey an order, assault, failure to report, disrespecting NCOs, and financial management.

9.  The record also contains the results for two urinalysis coded as PO (Probable Cause), dated 1 March 2006, that was positive for cocaine and CO (Command Directed), dated 
13 September 2006, that was positive for marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 293 and a DD Form 214.

POST-SERVICE ACTIVITY: 

None were 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 the characterization of his discharge was carefully considered.  However, after examining the applicant’s service record and the issue 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 service below that meriting an honorable discharge.  His record of service was marred by 4 Articles 
15, a Summary Court-Martial, and several negative counseling statements for violations of the Uniform Code of Military Justice.

3.  The applicant’s service record contains a DD Form 2624 (Specimen Custody Document for Drug Testing) that shows the urinalysis test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty.”  The Limited Use Policy applies to this test basis, per AR 600-85.  However, the evidence of record contains a counseling statement indicating the test was conducted when the applicant returned to the unit.  Based on his summary court-martial he had just returned from an AWOL of about 28 days on 12 September.  The urinalysis (UA) could have been based on a unit policy to test Soldiers returning from AWOL, which would have meant the UA was improperly coded.  However, the failure to include the marijuana charge resulting from the positive UA in the summary court-martial indicates the command probably felt it could not pursue the charge for some reason (perhaps limited use) or decided for some other reason not to pursue the charge.  

4.  In view of the aforementioned, it appears the CO code used on the DD Form 2624 was in all likelihood incorrect and should have been coded IO for “Inspection Other” instead of CO for “Competence for Duty.”  If this was in fact a harmless error, then the rights of the applicant were not prejudiced by the error on file in this case.  The evidence in the record did not create a substantial doubt that the discharge would have been any different if the error had not been made.

5.  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.  

6.  The applicant contends he asked for help several times and all he was told was go to post AA meetings and was discharge without receiving the proper treatment.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance.

7.  The applicant contends that he had good service until he started battling drugs.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

8.  The review of the applicant’s record also revealed that someone in the discharge process erroneously entered the reason for separation as misconduct (drug abuse).  
The separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct.  In view of the foregoing, the characterization of service being both proper and equitable, recommend the Board to deny relief.  Further, it is recommended that block 25 be changed to read separation authority to AR 635-200, chapter 14, paragraph 14-12b; block 26, separation code to JKA; block 27, reentry eligibility code to 3; and block 28, narrative reason for separation to ‘pattern of misconduct,’ as it was approved by the separation authority.  

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:  4 October 2013    Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA

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:		3
Grade Restoration to:		NA
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12b
Other:					Special Program Designator (SPD) Code JKA




















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)		AR20130005383



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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