IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 September 2013

      CASE NUMBER:  	AR20130005936
___________________________________________________________________________

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 characterization from general, under honorable conditions to fully honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, he was discharged with improper evidence.  He was not a perfect Soldier, but was hard working and took his service very seriously.  He had inadequate leadership in his opinion; NCOs were not thorough or clear on their orders.  When he was placed under a NCO with experience he had no problems and was promoted.  He never failed a urine test until he began having problems with the acting sergeant first class.  He also had issues with his acting first sergeant; he was told if he didn't stop all association with this battle buddy that he was helping, it would trickle down to him.  He believes any Soldier can be helped and it was his duty to do so.  After his battle buddy was discharged he became the target.  His family was expedited out so fast he was unable to appeal his case.  He was told he would not be separated until 30 November 2009; however, he was gone 30 days before that date.  He wrote to his congressman and was preparing his case, but he didn’t have the time to explain his case to him.  His unit had several complaints on the leadership of the unit and he knows his case was unfairly handled.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 March 2013
b. Discharge Received:		General, under honorable conditions
c. Date of Discharge:			31 October 2009
d. Reason/Authority/SPD/RE  	Misconduct (Drug Abuse), Chapter 14-12c, JKK, 
   RE-4
e. Unit of assignment:			574th CSCO, Rear Detachment, Vilseck, Germany	
f. Current Enlistment Date/Term:	25 September 2007/3 years/17 weeks/4 month
   extension (080204)
g. Current Enlistment Service:	2 years, 1 month, 6 days
h. Total Service:			3 years, 0 months, 11 days
i. Time Lost:				None
j. Previous Discharges:		RA 041005-050909/GD
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	91D10, Power-Generation Equipment
m. GT Score:				88
n. Education:				HS Graduate	
o. Overseas Service:			Germany
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, NPDR, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 25 September 2007 for a period of 3 years.  He was 23 years old at the time of entry and a high school graduate.  He served in Germany.  He earned the NDSM, the GWOTSM and the ASR and completed 3 years, 0 months, and 11 days of active duty service.  He also had a prior period of service from 5 October 2004 until 9 September 2005, and was separated with a general under honorable conditions discharge by reason of a pattern of misconduct.  The applicant required an administrative waiver to reenter the military.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 16 September 2009, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c(2).  Specifically for misconduct involving the abuse of illegal drugs on or between 14 June 2009 and 14 July 2009.  The applicant wrongfully used marijuana and failed to be at his appointed place of duty several 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 24 September 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted 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 29 September 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 separated on 31 October 2009, under Army Regulation 635-200, Chapter 14-12c(2), with a general, under honorable, conditions discharge, for misconduct (drug abuse) an SPD code of JKK, and an RE code of 4.  

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is one positive urinalysis reports contained in the record coded as IU, Inspection Unit, 14 July 2009, marijuana.

2.  Six negative counseling statements dated 7 April 2009; 17 June 2009 (two on the same date); 8 July 2009; 28 July 2009; and, 31 July 2009 for a failing to report to his appointed place of duty at the appointed time.

3.  Article 15, dated 9 December 2008, for unlawfully grabbing his spouse’s throat on             12 September 2008; and, for failing to go at the time prescribed to his appointed place of duty on diverse occasions between on or about 2 September 2008 and 16 September 2008.  Reduction to Private (E-1); forfeiture of $673.00 pay per month for one month, suspended, to be automatically remitted if not vacated on or before 7 June 2009; and, extra duty for 45 days (FG).
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement, positive urinalysis notification (4 pages), report of mental status evaluation, Military experience, congressional letter requesting help (including response letter) and three character letters. 

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.

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, 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 the characterization of his discharge 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.  

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 (marijuana), 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.

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 he was discharged with improper evidence.  He was not a perfect Soldier, but was hard working and took his service very seriously.  He had inadequate leadership in his opinion; NCOs were not thorough or clear on their orders.  The record shows the applicant’s leadership provided several counselings in an effort to correct his behavior without results.  The applicant also received punishment for his misconduct and his behavior did not change.  Further, the applicant was discharged from service in 2005 for a pattern of misconduct and received the same characterization of service; therefore, it is apparent he did not take his service seriously.  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.  

5.  The applicant further contends he never failed a urine test until he began having problems with the acting sergeant first class.  The applicant provided no evidence to support his allegation.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  In the applicant’s case the record shows he had multiple incidents of misconduct in addition to the positive urinalysis.  

6.  The applicant requests a change in the reason for the discharge.  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 drug offenses.  The regulation further stipulates that no deviation is authorized.  

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

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:  Record Review      Date:  9 September 2013        Location: Washington, DC

Did the Applicant Testify?  No 

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:		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)		AR20130005936



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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