IN THE CASE OF:  	Mr. 

      BOARD DATE:  	4 September 2013

      CASE NUMBER:  	AR20130005737
___________________________________________________________________________

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 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, he was told after six months his discharge could be possibly upgraded to honorable.  His reason for discharge makes if difficult when seeking employment opportunities. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			16 February 2011
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			A Btry, 4-42nd Field Artillery Regiment, APO AE 
f. Current Enlistment Date/Term:	5 September 2005, 4 years/the document which 						extended the applicant beyond his period of 							enlistment is not contained in the available record
g. Current Enlistment Service:	5 years, 5 months, 12 days 
h. Total Service:			9 years, 5 months, 22 days/block 12d on the 						`	applicant’s DD Form 214 total prior active service, is 						incorrect and should read 1 month, 9 days
i. Lost time:				None
j. Previous Discharges:		USMCR-(990701-000619)/NA									USMC-(000620-000728)/UNC									USAR-(020924-021104)/NA									RA-(021105-050904)/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	74D10, Chemical Operations Specialist
m. GT Score:				104
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq x 2 (041112-051014), (071101-090116)/							Afghanistan (100701-110125) 
q. Decorations/Awards:		ARCOM-3, AGCM-2, NDSM, ICM-W/CS, ACM-W/2 						CS, GWOTEM, GWOTSM, ASR, OSR-2, NATO MDL, 					MUC
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No



SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the U.S. Marine Corp Reserve on 1 July 1999 and was 17 years old.  He subsequently enlisted in the Marine Corp on 20 June 2000; he was 18 years old at the time and was discharged on 28 July 2000 with an uncharacterized discharge.  The applicant's record shows he enlisted in the Regular Army on 5 November 2002, for a period of 3 years.  He was 21 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 74D10, Chemical Operations Specialist.  His last enlistment was on 5 September 2005, for 4 years.  His record also shows he served three combat tours, earned several awards including an ARCOM-3, AGCM-2 and achieved the rank of SGT/E-5.  He was serving in Afghanistan when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 14 December 2010, 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 wrongfully using cocaine.

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 28 December 2010, 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 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 17 January 2011, 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 does not contain any documented evidence of unauthorized absences or lost time.

6.  The applicant was discharged from the Army on 16 February 2011, 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. 






EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 1 February November 2010 for wrongfully using cocaine (100710-100713); the punishment consisted of reduction to E-4, forfeiture of $1,146 pay x 2 months, (FG).

2.  He received two negative counseling statements dated 24 September 2010 and 2 January 2011, for wrongfully using cocaine and being recommended for separation under Chapter 14.

3.  The record of evidence contains a positive urinalysis report coded IU (Inspection Unit), dated 13 July 2010 for cocaine.

4.  The record also contains two NCO Evaluation Reports covering the periods of 1 June 2009 through 31 May 2010, with a fully capable rating and 1 June 2010 through 1 November 2010, which the applicant was rated as marginal.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293. 

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, 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 a change to the narrative reason for separation was carefully considered.  However, after examination of 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 NCO.  The applicant, as a NCO, had the duty to support and abide by the Army's drug policies.  By possessing/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 a Field Grade Article 15, two negative counseling statements, a marginal NCOER and positive urinalysis.

3.  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.

4.  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 (drug abuse).  The regulation further stipulates that no deviation is authorized.  

5.  The applicant contends he was told after six months his discharge could be possibly upgraded to honorable.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable.

6.  The applicant further contends his reason for discharge makes if difficult when seeking employment opportunities.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

7.  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 September 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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20130005737



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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