IN THE CASE OF:  	

      BOARD DATE:  	4 October 2013

      CASE NUMBER:  	AR20130007022
___________________________________________________________________________

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.  The applicant states, in effect, that he is aware that he committed a serious offense.  He has paid with the high price of losing his military career, the prestige he once possessed with his seniors, peers and the respect of his Soldiers.  He is experiencing difficulties and hardship obtaining civilian employment due to the nature of his discharged.  He feels as though he messed up his career.  He had served his country proudly for 16 good years.  He is asking for an upgrade for his family as well. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			3 January 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2) 						JKK, RE-4        
e. Unit of assignment:			E Company, Task Force Attack, Task Force 							Poseidon, Forward Operating Base Sharana, 							Afghanistan, APO AE 09311
f. Current Enlistment Date/Term:	2 July 2008, 5 years
g. Current Enlistment Service:	3 years, 6 months, 1 day
h. Total Service:			16 years, 10 months, 5 days
i. Time Lost:				None
j. Previous Discharges:		USNRS (910815-010908), HD                                                                        					USNR (010909-030902), NA									Break in Service											ARNG (051229-070425), HD
k. Highest Grade Achieved:		E-6	
l. Military Occupational Specialty:	91B20, Wheeled Vehicle Mechanic
m. GT Score:				103
n. Education:				15 Years
o. Overseas Service:			SWA
p. Combat Service:			Iraq (090911-100814)
q. Decorations/Awards:		ARCOM, AAM, AGCM, NDSM-2, ICM-w/CS, 							GWOTSM, AFSM-2, NPDR-2, ASR, OSR, NAAM-2 						NGCM-3, USN  USMC OSR-4, NSSDR-3 
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes	
u. Prior Board Review:			No



SUMMARY OF SERVICE:		
	
The applicant enlisted in the USNRS on 15 August 1991, and served for 10 years.  He was 
21 years old at the time of entry and was a high school graduate.  On 26 April 2007, he joined the Regular Army for a period of 3 years.  The applicant reenlisted on 2 July 2008 for a period of 5 years.  He was serving in Afghanistan when his discharge was initiated.  His record shows he was awarded an ARCOM, AAM, AGCM, two NAAM, and three NGCM.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 18 October 2011, the service record indicates that the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 
14-12c, AR 635-200, for misconduct-commission of a serious offense, specifically for testing positive for marijuana (110810).

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 19 October 2011, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and submitted a statement on his own behalf (NIF).  

4.  On 18 November 2011, 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 of the separation with a general, under honorable conditions discharge.  

5.  The separation authority directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

6.  The applicant was discharged from the Army on 3 January 2012, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with an SPD Code of JKK, and RE code of 4.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A positive urinalysis report contained in the record coded as IU (inspection unit), for marijuana, dated 25 August 2011.   

2.  One negative counseling statement, dated 31 August 2011, for wrongfully testing positive for marijuana.  

3.  A Field Grade Article 15, dated 14 September 2011, for wrongfully using marijuana (between 110711-110810).  His punishment consisted of a reduction to E-5, forfeiture of pay in the amount of $500.00, 45 days of extra duty and an oral reprimand.  

4.  Four successful NCOERs covering the period 2 May 2007 through 20 January 2011 and one negative NCOER covering the period 21 January 2011 through 22 September 2011, which reflected the misconduct.

5.  Of note, on 21 September 2005, the applicant had a drug abuse waiver approved for entry in to the ARNG.  

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided an online DD Form 293 and a DD Form 214.

POST-SERVICE ACTIVITY: 

None 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, paragraph 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 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, 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 discharge.  The applicant’s record of service was marred by an Article 15 for wrongfully using marijuana.  

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 he had 16 good years of service.  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 his discharge as shown by the documented actions under Article 15 of the Uniform Code of Military Justice.

5.  The applicant has expressed that he is experiencing difficulties and hardship obtaining civilian employment.  He would like the opportunity to provide better support for his family.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, 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 applicant requested that the narrative reason for the discharge be changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," 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 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.  

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: Records Review	  	Date:   4 October 2013	Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
Other:						NA






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)		AR20130007022

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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