IN THE CASE OF:  	

      BOARD DATE:  	6 November 2013

      CASE NUMBER:  	AR20130006616
___________________________________________________________________________

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 has grown up a lot and he is a completely different person than he was when he joined the US Army in 2008.  He has been clean since the end of 2010 and plans to stay that way.  He desires to reenlist in the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			10 March 2010
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200 								Chapter 14, paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			13th Chemical Company, 2nd Chemical Battalion						Fort Hood, TX
f. Current Enlistment Date/Term:	20 August 2008, 6 years and 25 weeks
g. Current Enlistment Service:	1 year, 2 months, 11 days 
h. Total Service:			1 year, 2 months, 11 days/block 12c on the DD Form 						214 net active service this period, is incorrect and 						should read 1 year, 2 months, 11 days to account for 						AWOL time
i. Lost time:				130 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	74D10, Chemical Operations Specialist
m. GT Score:				114
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:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant's record shows he enlisted in the Regular Army on 20 August 2008, for a period of 6 years and 25 weeks.  He was 17 years old at the time of entry with a GED Certificate.  He was trained in and awarded military occupational specialty (MOS) 74D10, Chemical Operations Specialist.  His 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 8 February 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.  Specifically for the following offenses:

     a.  for being AWOL (090220-090626)

     b.  testing positive for marijuana and cocaine (091116)

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 10 February 2010, the applicant waived legal counsel, was advised of the impact of the discharge action 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 19 February 2010, 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 130 days of time lost for being AWOL from       20 February 2009 until 26 June 2009; he surrendered to military authorities.  Also, this period of AWOL is not annotated on the DD Form 214 block 29 dates of time lost during this period.

6.  The applicant was discharged from the Army on 10 March 2010, 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 29 September 2009 for violating a lawful general regulation wrongfully consuming alcohol under the age of 21 years old (090731); and absenting himself from his unit (AWOL) (090220-090626); the punishment consisted of reduction to E-1, extra duty for 45 days and restriction for 45 days, (FG).

2.  An Article 15, dated 29 January 2010 for wrongfully using cocaine (091017-091116); the punishment consisted of reduction to E-1, forfeiture of $723 pay x 2 months, extra duty for 45 days and restriction for 45 days, (FG).

3.  The record of evidence contains a positive urinalysis report coded IU, dated 16 November 2009 for marijuana and cocaine.

4.  He received a negative counseling statement with a continuation, dated 1 December 2009 for wrongfully using dangerous drugs (marijuana and cocaine).

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 21 December 2009, which indicated his thinking process was clear; he could continue processing for Chapter 14 and no further evaluation and treatment is recommended.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided an online application; and a Certificate of Achievement.

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 examining his military records, 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 by two Articles 15, two positive urinalysis tests and a negative counseling statement.

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 to 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 drug offenses.  The regulation further stipulates that no deviation is authorized.  

5.  The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.

6.  The applicant contends he has grown up a lot and he is a completely different person than he was when he joined the US Army in 2008.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

7.  The applicant further contends he has been clean since the end of 2010 and plans to stay that way.  The applicant is to be commended for his effort.  However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.

8.  The applicant desires to reenlist in the Army.  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.  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:  6 November 2013       Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  None

Board Vote:
Character  	Change:  0 	No Change:  5
Reason	Change:  2	No Change:  3
(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:			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)		AR20130006616



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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