IN THE CASE OF:  	Mr. 

      BOARD DATE:  	18 December 2013

      CASE NUMBER:  	AR20130008054
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board noted that the government introduced the results of a biochemical test, which was coded CO (Command Directed) and that it was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in AR 600-85.  Use of this information mandates award of an honorable discharge.  Accordingly, the Board voted to change the characterization of service to honorable.  However, the Board found the reason for discharge was fully supported by the record and 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 under other than honorable discharge to general, under honorable conditions.
 
2.  The applicant states, in effect, that he was young and didn’t care if he was kicked out of service.  He is older and wiser now and would like a second chance.  He would like to be able to reenlist and gain his honor back.  He is a father and wants his daughter to be proud of him.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 October 2012	
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			17 January 2003	
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4	
e. Unit of Assignment:			B Company, 710th MSB, Fort Drum, NY	
f. Current Enlistment Date/Term:	6 February 2001, 4 years 
g. Current Enlistment Service:	1 year, 11 months, 12 days
h. Total Service:			1 year, 11 months, 12 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	27E10, Tow Dragon Repairer
m. GT Score:				118
n. Education:				HS Graduate	
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
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 6 February 2001, for a period of 4 years.  He was 19 years old at the time of entry and a high school graduate.  He received his training at Fort Jackson, SC and was assigned to Fort Drum, NY when his separation was initiated.  He had no special awards or meritorious achievements.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 16 December 2002, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The specific reasons were for:
	a.  Showing a complete disregard to rules and regulations, and a lack of discipline and respect towards those in charge.

	b.  Receiving a Field Grade Article 15 on 29 July 2002, for wrongfully using marijuana (between 020602 and 020702).

	c.  Receiving a Field Grade Article 15 on 4 December 2002, for wrongfully using marijuana again (between 020915 to 021015).

	d.  Having 10 specifications of failing to report on divers occasions (between 021009 and 021018).  

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

3.  On 17 December 2002, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated he would not submit a statement in 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 an under other than honorable conditions discharge.  

4.  On 14 January 2003, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of an under other than honorable conditions discharge.  

5.  The applicant was separated on 17 January 2003, under Army Regulation 635-200, Chapter 14-12c(2), with an under other than honorable conditions discharge, an SPD code of JKK, and an RE code of 4.               

6.  The applicant’s record does not contain any lost or AWOL time.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Field Grade Article 15, dated 4 December 2002, for failing to go to his appointed place of duty at the prescribed time x 10 (021118 x2, 021116 x2, 021113, 021016 x2, 021015 x2, 021009), and wrongfully used marijuana (between 020915 to 021015).  The punishment imposed consisted of a reduction to E-1, forfeiture of $552.00 per month for two months, extra duty for 45 days and an oral reprimand.

2.  A Field Grade Article 15, dated 29 July 2002, for wrongfully using marijuana (between 020602 and 020702).  The punishment imposed consisted of a reduction to E-2, forfeiture of $619.00 per month for two months, suspended, and extra duty and restriction for 45 days.

3.  A positive urinalysis reports contained in the record coded as CO, Command Directed, 
15 October 2002, marijuana.

4.  A positive urinalysis reports contained in the record coded as IU, Inspection Unit, 
19 November 2002, marijuana.

5.  Numerous negative counseling statements covering the period of 28 October 2002 through 11 December 2002, for failing to report, failing to follow instructions, receiving a flag and a bar to reenlistment, revoking pass privileges, disobeying a lawful order, extra duty instructions and not being on time.

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.  After a careful review of all the applicant’s military records, the issue and documents submitted with the application, the characterization of service appears to be improper.  

2.  The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 15 October 2002, which was coded CO and that it was part of the applicant’s ASAP treatment plan.  This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant’s rehabilitation program.  Use of this information mandates award of an honorable characterization of service.  

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

4.  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:  18 December 2013        Location: Washington, DC

Did the Applicant Testify?  NA

Counsel:  None

Witnesses or 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)		AR20130008054



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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