IN THE CASE OF:  	

      BOARD DATE:  	23 September 2013

      CASE NUMBER:  	AR20130005648
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s quality of service (i.e., 2 AAMs and a HD) and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and 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 under other than honorable conditions discharge to honorable and a change to the narrative reason for his separation.  In addition, the counsel later submitted additional documents requesting to have the applicant’s name be removed from the ROI.

2.  The applicant states, in effect, that his overall service record, including enlistment performance reports, rate of promotions, awards, decorations and letters of commendation, show that his six years of service was both faithful and honorable.  On this basis, he petitions the board to change his characterization of service to fully honorable.  Furthermore, the narrative reason assigned to his discharge is improper.  He is requesting to have it amended also.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 March 2013
b. Discharge Received:		Under Other Than Honorable Conditions	
c. Date of Discharge:			23 March 1998
d. Reason/Authority/SPD/RE:		Misconduct, 14-12c(2), JKK, RE-4
e. Unit of assignment:			C Btry, 2-320th FA, 101st Abn Div (AASLT), Fort 						Campbell, KY	
f. Current Enlistment Date/Term:	21 December 1995, 4 years 	
g. Current Enlistment Service:	2 years, 3 months, 2 days
h. Total Service:			5 years, 10 months, 24 days 
i. Time Lost:				None
j. Previous Discharges:		RA (920430-951220), HD	
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	13E1P, Cannon Fire Direction Specialist
m. GT Score:				98
n. Education:				HS Graduate
o. Overseas Service:			Germany
p. Combat Service:			None
q. Decorations/Awards:		AAM-2, AGCM, NDSM, NPDR, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes	
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 30 April 1992, for a period of four years.  He was 18 years old at the time of entry and a high school graduate.  He reenlisted on 
21 December 2005 for four years and was serving at Fort Campbell, KY when his discharge was initiated.  He was awarded two AAMs, an AGCM, and a NPDR.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 8 January 1998, 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 serious offense, for on divers occasions, wrongfully used marijuana, having subverted DIVARTY urinalysis procedures, and testifying falsely under oath.  

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 20 January 1998, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge.  

4.  On 6 February 1998, the separation authority disapproved the conditional waiver request and appointed an administrative separation board.

5.  On 6 February 1998, the applicant again consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board.  The applicant did not submit a statement on his own behalf.  

6.  On 17 March 1998, the separation authority directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

7.  The applicant’s record does not show any record of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  General Court-Martial adjudged at Fort Campbell, KY on 6 August 1997.  The applicant was found guilty of wrongfully using marijuana.  His punishment consisted of reduction to E-2, and a forfeiture of $500.00 pay per month for two months.  

2.  On 3 December 1997, the applicant accepted an Article 15, for wrongfully using marijuana (971005-971105); his punishment consisted of reduction to the grade to E-1, and 45 days of extra duty (FG).

3.  A urinalysis results showing the applicant tested positive for THC; however, the specific coding is not contained in the applicant’s record.


4.  Two NCOERs covering the period August 1998 through November 1996.  The applicant was rated Fully Capable on each report.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 293; two DD Form 214s; two Personnel Qualification Records; a copy of the General – Court Martial proceedings; a copy of the CID Report; 
4 letters from his attorney; and AMHRR documents. 

POST-SERVICE ACTIVITY: 

None were provided by the applicant.

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), for 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 his characterization and a change to the reason for the discharge was carefully considered.  However, after examining the applicant’s record of service during the period of enlistment under review, the issues and document 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 non-commissioned officer.  The applicant, as an NCO, 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 or a general, under honorable conditions discharge.  

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 his overall service record, including enlistment performance reports, rate of promotions, awards, decorations and letters of commendation show that his six years of service was both faithful and honorable.  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 due to the General Court-Martial and the documented action under Article 15 of the Uniform Code of Military Justice.

5.  The applicant also requests the narrative reason for his discharge be changed.  The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with an under other than honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct", 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 entered 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.  The Transition Center (TC) appropriately selected the SPD code, reentry code and reason for the discharge to execute the commander's intent which in this case was to discharge the applicant for wrongfully using an illegal drug.  Army Regulation 635-5-1 provides the authority for TC throughout the Army to execute the commanders’ intent and in this case the TC selected the appropriate reentry code, the SPD Code that identified the type of separation and the correct paragraph from AR 635-200 that corresponded with the reason for the applicant’s separation as described in the discharge packet.

6.  In addition, the counsel later submitted additional documents requesting to have the applicant’s name be removed from the ROI.  However, the counsel’s request does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization.

7.  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.  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: Personal Appearance  Date:  23 September 2013 	Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: Yes

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

1.  The applicant submitted the following additional documents:

	a.  Resume
	b.  Various work identification cards
	c.  Letters of Recommendation
	d.  Personal references

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.



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:		General, Under Honorable Conditions
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)		AR20130005648



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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