IN THE CASE OF:  	Mr.

      BOARD DATE:  	2 October 2013

      CASE NUMBER:  	AR20130006834
___________________________________________________________________________

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.  

2.  The applicant states, in effect, the reason for the upgrade is that he may be able to attend school full time, and so that he can provide for his family.  He feels he has earned his benefits and it’s frustrating and confusing that he is not receiving his benefits.  He has seen other people with worse cases than his get their benefits.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			16 December 2009
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4        
e. Unit of assignment:			A Co, 27th BSB, 4th BCT, 1st CAV, Fort Hood, TX 
f. Current Enlistment Date/Term:	19 September 2006, 4 years 
g. Current Enlistment Service:	3 years, 2 months, 28 days
h. Total Service:			3 years, 2 months, 28 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	92A10, Automated Logistical Specialist
m. GT Score:				91
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (080608-090521)
q. Decorations/Awards:		ARCOM, NDSM, GWOTSM, ICM-CS, ASR, OSR	
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 19 September 2006, for a period of 4 years.  He was 18 years old at the time of entry and was a high school graduate.  He served a combat tour in Iraq, and was serving at Fort Hood, when his discharge was initiated.  He was awarded an ARCOM, NDSM, GWOTSM, ICM, ASR, and an OSR.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence shows that on 4 November 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for commission of a serious offense, abuse of illegal drugs, specifically for testing positive for marijuana on a drug test taken on 21 July 2009.  

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  

3.  The applicant consulted with 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 of the separation with a general, under honorable conditions discharge.  

4.  On 25 November 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 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 Transition Centers (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. The applicant was discharged from the Army on 16 December 2009, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with an RE code of 4.

7. The service record does not contain any evidence of time lost or unauthorized absences.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The applicant received a field grade Article 15, dated 18 September 2009, for wrongfully using marijuana (090622-090721); his punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $699.00 for one month, 45 days of extra duty.  

2.  One negative counseling dated 19 October 2009, for testing positive for marijuana on a unit urinalysis.

3.  One negative counseling dated 19 October 2009, reflecting the initiation of elimination action on the applicant for commission of a serious offense for wrongfully using marijuana.  

4.  The record also contains a positive urinalysis coded as IU (Inspection Unit), dated 21 July 2009, that was positive for marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 3 April 2013; a DD Form 214; a copy of an ARCOM, dated 22 February 2009; and a letter from the Department of Veterans Affairs, dated 16 March 2013.   

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.

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 service record, 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 that 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 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 that other Soldiers with similar offenses were allowed to receive their benefits.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

5.  The applicant has expressed his desire to receive the benefits that he has earned.  However, 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.

6.  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.  

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: 2 October 2013      Location: Washington, DC

Did the Applicant Testify?  NA

Counsel: No

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)		AR20130006834

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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