IN THE CASE OF:  	

      BOARD DATE:  	15 November 2013

      CASE NUMBER:  	AR20130007932
___________________________________________________________________________

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, that he turned in the wrong direction after leaving Germany.  When he reported to Fort Lewis WA, he didn’t have any guidance.  He turned to marijuana because he was single and was lost after serving in the war.  He was a good Soldier and was never given a second chance.   

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			18 October 2006
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2) 						JKK, RE-4        
e. Unit of assignment:			38th Engineer Company, 2-23d Infantry Regiment, 						4th Brigade, 2d Infantry Division (SBCT), Fort Lewis 						WA
f. Current Enlistment Date/Term:	1 April 2005, 3 years 
g. Current Enlistment Service:	1 year, 6 months, 17 days
h. Total Service:			4 years, 0 months, 17 days
i. Time Lost:				None
j. Previous Discharges:		RA (021002-050330), HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	21B10, Combat Engineer
m. GT Score:				81
n. Education:				HS Graduate
o. Overseas Service:			SWA, Germany
p. Combat Service:			Iraq (030429-040721)
q. Decorations/Awards:		AGCM, NDSM, GWOTEM, GWOTSM, ASR, OSR-2
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 2 October 2002, for a period of 3 years.  He was 19 years old at the time of entry and was a high school graduate.  He reenlisted on 30 March 2005, for a period of 3 years.  He was serving at Fort Lewis, WA when his discharge was initiated.  His record show he was awarded an AGCM.



SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows that on 6 September 2006, 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 wrongfully using marijuana (060516).

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 6 September 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action and stated that he would submit a statement on his behalf (NIF).  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 29 September 2006, 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 18 October 2006, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with an RE code of 4.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant received a field grade Article 15, dated 28 June 2006, for wrongfully using marijuana between (060416-060516); his punishment consisted of reduction to the grade of 
E-1, forfeiture of pay in the amount of $636.00 for two months, 45 days of extra duty and restriction.

2.  Fifteen counseling statements covering the period 10 January 2005 through 31 July 2006, being positive for marijuana on a unit urinalysis, disobeying a direct order, monthly performance, disobeying a commissioned officer, off post behavior, and intentionally discarding his I.D. card.

3.  The record also contains a positive urinalysis coded as IR (Inspection Random), dated      16 May 2006, that was positive for marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT 

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


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 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 he had good service which included a combat tour.  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 discharge as shown by his serious offense of abusing an illegal drug.  

5.  The applicant contends he was not afforded a second chance.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling.  The applicant failed to respond appropriately to these efforts.

6.  The applicant contends that he had issues because he was single and was lost after serving in the war.  He didn’t have any guidance at Fort Lewis, WA.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.

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:  15 November 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






















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)		AR20130007932



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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