IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 October 2013

      CASE NUMBER:  	AR20130007261
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, and considering the examiner’s Discussion and Recommendation which follows, the Board determined the characterization of service was improper.  

2.  The record shows the government introduced into the discharge packet the results of a biochemical test which was coded CO (Competence for Duty/Command Direct/Fitness for duty)  This is limited use information as defined in AR 600-85 and is protected evidence.  Use of this information mandates award of an honorable characterization of service.  

3.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was both proper and equitable and the Board voted not to change it.

      
      
      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 under other than honorable conditions to general, under honorable conditions.

2.  The applicant states, in effect, he suffers from service connected disabilities and would like to receive VA benefits.  He served honorably until he was transferred to Fort Lewis.  Many of the infractions of discipline were a result of medications needed for surgery; most of his infractions should not have been written up.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date 		15 April 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			29 August 2003
d. Reason/Authority/SPD/RE Code:	Misconduct , AR 635-200, Chapter 14, 								paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			864th Engineer Battalion, 555th Combat Engineer 						Group, Fort Lewis, WA
f. Current Enlistment Date/Term:	10 September 2001, 3 years
g. Current Enlistment Service:	1 year, 11 months, 15 days
h. Total Service:			4 years, 3 months, 1 day
i. Time Lost:				5 days
j. Previous Discharges:		USAR (990514-990608)/NA									IADT (990606-991028)/UNC									USAR-991029-001025/NA										ARNG-001026-010909/HD	
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	63E10, Heavy Construction Equipment Operator
m. GT Score:				94
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 enlisted in the U.S. Army Reserves on 14 May 1999 for a period of 8 years.  He was 21 years old at the time of entry with a GED Certificate.  He was initially trained in and awarded military occupational specialty (MOS) 63S10, Heavy Construction Equipment Operator.  He was discharged from the U.S. Army Reserve on 25 October 2000; the characterization of service was not in the file.  The applicant enlisted in the Army National Guard on 26 October 2000, for a period of 6 years and 27 weeks, and he was 23 years old at the time.  The applicant enlisted in the Regular Army on 10 September 2001, for a period of 3 years and he was 24 years old at the time of entry with a GED Certificate.  He trained in and was awarded military occupational specialty (MOS) 63E10, Heavy Construction Equipment Operator.  His record does not contain any evidence of acts of valor or meritorious achievements and he achieved the rank of SPC/E-4.  He was serving at Fort Lewis, WA when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 20 June 2003, the unit commander, notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct.  Specifically for the following offense:

     a.  failing to report on divers occasions x 5 (030430, 030429, 030407, 030404, 030401)

     b.  making false official statements x 2 (030404, 030403)

     c.  being AWOL from his unit (030327-030331)

     d.  disobeying a lawful order (030430)

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

3.  On 20 June 2003, the applicant waived legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board 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 and senior commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions characterization of service.  

4.  On 8 August 2003, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service indicates 5 days of time lost for being AWOL from 27 March 2003 until his return on 31 March 2003.
6  The applicant was discharged from the Army on 29 August 2003, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 21 May 2003 for without authority, failing to go at the time prescribed to his appointed place of duty x 5 (030430, 030429, 030407, 030404, 030401); with intent to deceive by making false official statements x 2 (030404, 030403) absenting himself from his unit (AWOL), (030327-030331);and disobeying a lawful order (030430); the punishment consisted of reduction to E-1, forfeiture of $575 pay x 2 months, extra duty for 30 days and restriction for 30 days, (FG).

2.  The record contains a Bar to Reenlistment, dated 15 April 2003.

3.  The record of evidence contains a positive urinalysis report coded CO (Command Directed), dated 1 May 2003. 

4.  He received 10 negative counseling statements which were completed between 27 March 2003 through 21 May 2003, for failing to report on numerous occasions, being AWOL, insubordinate conduct towards an Warrant Officer, NCO/Petty Officer, disobeying a general order or regulation, and testing positive for THC.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149.

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.

DISCUSSION AND RECOMMENDATION:

1.  After a careful review of all the applicant’s military records during the period of enlistment under review, the issues submitted with the application, the characterization of service appears to be improper.  

2.  The record confirms that on 1 May 2003, the applicant was given a command directed urinalysis (CO) and he tested positive for marijuana.  

3.  There is no indication in the chapter paperwork the command believed the urinalysis was improperly coded “CO.”  There are also no CID reports or counseling statements that shed any light on the reason the urinalysis was directed.

4.  Therefore, it appears the urinalysis was properly coded CO, and the discharge was improperly characterized given the introduction of the limited use evidence in the chapter paperwork.  

5.  The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded.  

6.  The records show the proper discharge and separation procedures were not followed in this case.  

7.  Therefore, the characterization of service being improper, recommend the Board grant full relief by upgrading the applicant’s characterization to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.







SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  23 October 2013       Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  NA

Witnesses/Observers:  NA

Board Vote:
Character Change:  5	No Change:  0
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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)		AR20130007261



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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