IN THE CASE OF:  	

      BOARD DATE:  	18 September 2013

      CASE NUMBER:  	AR20130005467
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review, and notwithstanding the examiner’s 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 CO (Competence for Duty/Command Direct/Fitness for duty)  This is limited use information as defined in AR 600-85 and is protected evidence.  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 both 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 and a change to the narrative reason for separation.

2.  He states, in effect, his chain of command used his only Article 15 to chapter him during rehabilitation; because he was non deployable, they rushed his chapter to request deployable Soldiers; and had he been deployable, things would have been different.  He should have been medically discharged.  He was experiencing pain and depression, and is homeless.  He desires to receive VA benefits.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			10 April 2003
d. Reason/Authority/SPD/RE:		Misconduct AR 635-200, Chapter 14, paragraph 14-
      12c(2), JKK, RE-4
e. Unit of assignment:			A Co, 2-12th Cavalry Regiment, Fort Hood, TX
f. Current Enlistment Date/Term:	23 October 2001, 3 years
g. Current Enlistment Service:	1 year, 4 months, 9 days 
h. Total Service:			1 year, 4 months, 9 days
i. Lost time:				39 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	19K10, M1 Armor Crewman
m. GT Score:				109
n. Education:				GED Certificate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 23 October 2001, for a period of 3 years.  He was 25 years old at the time of entry with a GED Certificate.  He was trained in and awarded military occupational specialty (MOS) 19K10, M1 Armor Crewman.  The record does not contain any evidence of acts of valor or meritorious achievements and he achieved the rank of PV2/E-2.  He was serving at Fort Hood, TX when his discharge was initiated.  



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 18 March 2003, 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 of misconduct-commission of a serious offense for testing positive for illegal drugs (060530) and AWOL.

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 18 March 2003, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board (although the applicant was not entitled to a board) 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 with a general, under honorable conditions discharge.

4.  On 31 March 2003, 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 indicates 39 days of time lost for being AWOL from           14 December 2002 through 21January 2003, mode of return to duty on 22 January 2003 unknown.

6.  The applicant was discharged from the Army on 10 April 2003, 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. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 4 November 2002 for wrongfully using marijuana (020801-020830); the punishment consisted of reduction to E-1, forfeiture of $552 pay x 2 months, extra duty for 45 days and restriction for 45 days, (FG).

2.  The record of evidence also contains a positive urinalysis report coded CO (Fitness for Duty), dated 22 January 2003 for marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, Honorable Discharge Certificate, and U.S. Army Reserve Discharge Orders D-09-918783.



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.

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 14-12c(2), misconduct.

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 a change to the narrative reason for separation was carefully considered.  However, after examining his military record, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.

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 an Article 15 and a positive urinalysis report.

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 DA Form 4187 that indicated the applicant returned from AWOL on 21 January 2003.  In all likelihood, the unit commander had a policy to test Soldiers after returning from AWOL, and leave, etc.        

4.  The unit commander ordered the applicant to provide a urine sample based on his drug policy.  The applicant consulted with legal counsel, who would have informed him if the Limited Use Policy applied.  In view of the aforementioned, the analyst determined the code 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.”  The rights of the applicant were not prejudiced by the error on file in this case.  The evidence 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 his service mitigated the misconduct or poor duty performance.

6.  The applicant requested a change in the narrative reason for separation.  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 misconduct.  The regulation further stipulates that no deviation is authorized.  A Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.

7.  The applicant contends his chain of command used his only Article 15 to chapter him while in rehabilitation; because he was non deployable, they rushed his chapter to request deployable Soldiers; and had he been deployable, things would have be different.  However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.

8.  Further, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

9.  The applicant further contends he should have been medically discharged.  Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.

10.  The applicant also contends he was experiencing pain and depression and is homeless.  However, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.

11.  Further, eligibility for the housing supportive program benefits for Veterans does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance.

12.  The applicant desires to receive VA benefits.  Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

13.  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:  18 September 2013   Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  None

Board Vote:
Character  	Change:  3	No Change:  2
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:			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	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130005467



Page 2 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1