IN THE CASE OF:  	Mr.

      BOARD DATE:  	7 February 2014

      CASE NUMBER:  	AR20130007745
___________________________________________________________________________

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 improper.  The evidence indicates the applicant in accordance with AR 635-200, was entitled to a hearing before an administrative separation board because he had 6 or more years of total active and reserve service on the date of initiation of recommendation for separation. Per AR 635-200, this includes creditable service in any US military component, such as RA, ARNGUS, USAR (including IRR and Delayed Entry Program), USN, and USAF.  Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  



      
      
      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, a change to the reentry (RE) code and to the narrative reason for the discharge.

2.  The applicant states through legal counsel, in effect, that the applicant was unjustly discharged.  The applicant contends he never received an Article 15, letter of reprimand, or a loss of rank.  He contends he was discharged by an unfounded allegation for which he was never given the opportunity to defend himself and never punished for.  If his command thought he had a drug problem then he should have been sent to Army Substance Abuse Program (ASAP); he was never sent to ASAP.  The applicant also contends that block 12c of his DD Form 214 incorrectly show his net active service.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			22 February 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			258th MP Corps, Fort Polk, LA
f. Current Enlistment Date/Term:	9 February 2006, 5 years
g. Current Enlistment Service:	6 years, 14 days
h. Total Service:			6 years, 4 months, 3 days
i. Time Lost:				None
j. Previous Discharges:		USAR-051020-060208/NA
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	31B20, Military Police
m. GT Score:				100
n. Education:				GED
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (070921-081209)
q. Decorations/Awards:		ARCOM, AAM-2, AGCM, ICM-w/CS, NDSM, 							GWOTSM, ASR, OSR-2, CAB
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 United States Army Reserve (USAR)/delayed entry program      20 October 2005.  On 8 February 2006, he was discharged from the delayed entry program for enlistment in the Regular Army.  The applicant enlisted in the Regular Army on 9 February 2006, for a period of 5 years.  He was 19 years old at the time of entry and had a high school equivalency (GED).  His record indicates he served in Iraq; achieved the rank of SGT/E-5; and received several awards to include an ARCOM, two AAMs, an AGCM, and the CAB.  He was serving at Fort Polk, LA when his separation was initiated.  He completed 6 years, 4 months, and 3 days of total military service.  The applicant record indicates he enlisted for a period of   5 years; however, the period under review shows the applicant served 6 years and 14 days; an extension or reenlistment contract was not found in the record.  The enlisted record brief (ERB) indicates the applicant's ETS was (120823).

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 30 January 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs for the illegal distribution of approximately 10 dosage units of anabolic steroids to a CID source at his residence in Mannheim, Germany (110209).

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 2 February 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit 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 8 February 2012, 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 discharged from the Army on 22 February 2012, 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), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

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





EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Agents Investigation Report, dated 13 February 2011 and 9 May 2011, that indicates the applicant was the subject of investigation for wrongful use and distribution of steroids.

2.  The record contains three NCO Evaluation Reports covering the period of 1 July 2009 through 31 January 2012.  The applicant was rated overall as "Among the Best."

3.  A negative counseling statements dated 9 January 2012, for the wrongful use and possession of controlled substances.
      
4.  A Report of Mental Status Evaluation, dated 24 January 2012, which diagnosed the applicant with an adjustment disorder with anxiety (by history).  However, the applicant was cleared for any administrative action deemed appropriated by the command and that he could appreciate the difference between right and wrong.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a copy of his affidavit, CID Agent investigation report, entry, unit commander's initiation memorandum, dated 30 January 2012 (2), National Archives documents pertaining to his discharge (i.e., discharge packet), steroid drug test form, NCOER, honorable discharge certificate, certificate of graduation from the warrior leader course, copy of two AAM certificates, AGCM and CAB orders, copy of inter-service non-lethal individual weapons instructor course certificate, resume, Enlisted Records Brief, and a copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were provide 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 was carefully considered.

2.  After a careful review of all the applicant’s military records, the issues and documents submitted with the application, the characterization of service and reason for the discharge appear to be improper.

3.  The service record confirms that when the unit commander notified the applicant of initiation of discharge proceedings on 30 January 2012, the applicant had completed a total of 6 years, 3 months and 11 days of service from the day he entered the Delayed Entry Program on         20 October 2005.  In accordance with AR 635-200, the applicant was entitled to a hearing before an administrative separation board because he had 6 or more years of total active and reserve service on the date of initiation of recommendation for separation. Per AR 635-200, this includes creditable service in any US military component, such as RA, ARNGUS, USAR (including IRR and Delayed Entry Program), USN, and USAF.  

4.  An administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects the applicant did not receive an administrative separation board.  Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.

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

6.  Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF."  This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  Date:  7 February 2014          Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: Yes [redacted]

Witnesses/Observers: NA 

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

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
Change Reason to:			Secretarial Authority
Change Authority for Separation:	AR 635-200, Chapter 5-3
Change RE Code to:		1
Grade Restoration to:		NA
Other:					Change Separation Program Designator (SPD) code to JFF








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)		AR20130007745



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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