IN THE CASE OF: 	Mr. 

      BOARD DATE:  	2 October 2013

      CASE NUMBER:  	AR20130005446
___________________________________________________________________________

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 was 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 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, he was homeless when he enlisted.  He served as a good Soldier in a military police battalion.  He lost friends when his unit deployed in 2008.  He just had a child and was due to go overseas for three years without him, and reenlisted for a unit in Germany, which stressed him out.  He made a mistake by taking more medication for his surgery and had a positive urinalysis, but not for drugs—he did not fight it because a part of him wanted to be stateside with his son.  He was not married.  He had just graduated from an air assault school in 2009.  It broke him to leave his newborn son for three years to a striker unit and his sponsor said they would deploy.  His friend was killed at 23 by “EFP in Iraq” and left his three children.  He explained to his chain of command how he felt and why he tested positive, and was asked if he wanted to stay in because he was a good Soldier, he could go to ASAP, and still be in as it was his first issue of being trouble.  He did not want to stay, but wanted to take care of his son.  He was informed he would receive a GD and would be able to get back in later if he chose to.  He has a lot to offer the Army.  He planned to get his son and return to active duty.  However, his reentry code of 4 stops him from reenlisting.  He made a mistake and has been homeless for the past four years and being a father, but it was not the agreement made with the commander who was the separating authority.  He works at the library on Fort Bliss as an Army civilian and sees people from his old unit.  He is asking for a chance to prove himself.  He served in the Army National Guard and active duty since 2004.  He loves the Army and wishes a change to the reentry code.  While on active duty, he earned an AAM, E-4, and air assault.  He graduated from the basic Army management staff college in January 2013.  He is ready to lead Soldiers. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	18 March 2013 
	b.	Discharge Received:	General, Under Honorable Conditions 
	c.	Date of Discharge:	14 August 2009
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	72nd MP Det, 93rd MP Rear Provisional Bn, USAG, 
			Fort Bliss, TX
	f.	Current Enlistment Date/Term:	27 August 2008, 4 years 
	g.	Current Enlistment Service:	0 years, 11 month, 18 days
	h.	Total Service:	2 years, 10 months, 29 days 
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (041123-050228) / UNC
			ARNG (061221-070204) / NA
			IADT (070205-070608) / UNC
			ARNG (070608-070702 / HD
			RA (070703-080826) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	42A10, Human Resources Specialist 
	m.	GT Score:	94 
	n.	Education:	HS Graduate 
	o.	Overseas Service:	NIF
	p.	Combat Service:	NIF 
	q.	Decorations/Awards:	NDSM; GWOTSM; ASR
	r.	Administrative Separation Board: 	No 
	s.	Performance Ratings:	None 
	t.	Counseling Statements:	NIF 
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant’s discharge following his enlistment on 4 November 2004, is NIF.  However, the applicant enlisted in the Army National Guard on 21 December 2006 and discharged on 2 July 2007, with honorable service.  He enlisted in the Regular Army on 3 July 2007, and reenlisted on 27 August 2008, for a period of 4 years.  He was 20 years old at the time of entry and a high school graduate.  There is no record of any overseas assignment.  His record documents no acts of valor or significant achievement.  He completed 2 years, 10 months, and 29 days of credible active and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 3 August 2009, 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 misconduct (serious offense).  Specifically for the following offenses:  

a. wrongfully using a control substance, THC
b. committing assault, twice
c. being insubordinate in conduct toward an NCO four times

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 4 August 2009, 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 10 August 2009, 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 14 August 2009, 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.  Article 15, dated 23 June 2009, wrongfully using THC, a controlled substance (090603).  The punishment consisted of reduction to the grade of E-2, forfeiture of $784 per month for two months (suspended), 45 days of extra duty and restriction, (FG). 

2.  Article 15, dated 6 August 2008, disobeying two NCOs on 2 occasions (080609), disrespectful in language toward two NCOs on 2 separate occasions (080609).  The punishment consisted of 10 days of extra duty and restriction, (CG). 

3.  Article 15, dated 13 February 2008, assault (080121), disobeying a commissioned officer (080129).  The punishment consisted of reduction to the grade of E-2, forfeiture of $754 per month for two months, 45 days of extra duty and restriction, (FG). 

4.  Article 15, dated 10 December 2007, assault (071027).  The punishment consisted of 7 days of extra duty, (CG-summarized).

5.  There are no counseling statements in the file.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of an ARCOM certificate and air assault diploma.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, he works in an Army base library as a civilian.  

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.  The applicant’s request for an upgrade of the characterization of his discharge, and changes to the narrative reason for his discharge and reentry code was carefully considered.  However, after examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or changes to the narrative reason for his discharge and the reentry 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 an Article 15 for violation of Article 112a of the Uniform Code of Military.

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 had good service which included earning an AAM and an E-4 rank, and completing the air assault course.  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 serious incident of misconduct or by the documented action under Article 15 of the Uniform Code of Military Justice.

5.  The applicant contends having to be away from his newborn son and friends killed in Iraq may have contributed to his behavior and ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

6.  The applicant contends that medical issues, such as taking more medication for his surgery resulted in a positive urinalysis and contributed to his discharge from the Army.  However, the service record does not support the applicant’s contention of having any medical issues.  

7.  The applicant contends the narrative reason for the discharge should be changed, but did not provide a specific reason.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), 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 (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.

8.  The applicant expresses a desire to rejoin the Military Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

9.  The applicant contends that since leaving the Army he has been employed in a library and had completed a management course.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of 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.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  

10.  The unit commander’s notification memorandum dated 9 August 2009, contained offenses the applicant committed in a prior period of service.  Specifically, the offenses relating to committing assault twice and being insubordinate in conduct toward an NCO four times, and the inclusion of three separate Article 15 actions that document the aforementioned offenses during his previous enlistment.  The government’s presumption of regularity cannot be applied in this case because the command used misconduct from a previous enlistment and the separation authority did not specifically state the earlier incidents of misconduct were not considered for the purpose of characterization.  Army Regulation 635-200 specifically requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular and the Army Discharge Review Board must consider this as an issue of fact when determining the applicant’s characterization of service.  The unit commander’s forwarding memorandum of recommendation to the separation authority, dated 5 August 2009, states at paragraph 1f, the specific, factual reason for the action the commander is recommending is the applicant’s wrongful use of a controlled substance.  

11.  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:  2 October 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  1	No Change:  4
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 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)		AR20130005446

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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