IN THE CASE OF:  	Mr. 

      BOARD DATE:  	15 November 2013

      CASE NUMBER:  	AR20130008255
___________________________________________________________________________

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 characterization from general, under honorable conditions to honorable.

2.  He states, in effect, his discharge was based on an isolated incident during five years of service with no other adverse action.  Prior to the incident he had been in the hospital the week before; he was experiencing medical issues which he was nervous about and was not in an excellent state of mind.  Since being discharged from the military he has not been in trouble again and stayed away from drugs.  He desires a second chance to correct a major mistake.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		29 April 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			26 Feb 2005
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:			17th Signal Battalion (Rear), APO AE 09225
f. Current Enlistment Date/Term:	25 October 2002, 4 years
g. Current Enlistment Service:	2 years, 4 months, 2 days 
h. Total Service:			5 years, 9 months, 6 days
i. Lost time:				None
j. Previous Discharges:		RA-(990521-011024)/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	25F10, Network Switching Systems Operator 							/Maintainer
m. GT Score:				126
n. Education:				HS Graduate
o. Overseas Service:			Korea/Germany
p. Combat Service:			Specific location and dates are not in the file
q. Decorations/Awards:		ARCOM, AAM-5, NDSM, GWOTEM, GWOTSM, 						ASR, OSR-2, JMUA
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 Regular Army on 21 May 1999, for a period of 4 years.  He was 20 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 25F10, Network Switching Systems Operator/Maintainer. On 25 October 2002, he reenlisted for a period of 4 years and was 23 years old at the time.  His record also shows that he served a combat tour, earned several awards including an ARCOM, and AAM-5. He achieved the rank of SGT/E-5.  He was serving in Germany when his discharge was initiated.
SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 4 January 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense for wrongfully possessing and using cocaine (040902).

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 12 January 2005, the applicant consulted with legal counsel, even though his election rights indicated he waived legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board (although he was not entitled to a board), and submitted 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 11 February 2005, 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’s record does not document any record of unauthorized absences or lost time.

6.  The applicant was discharged from the Army on 26 February 2005, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 19 October 2004 for wrongfully possessing .33 grams of cocaine (040902); and wrongfully using cocaine (040902).  The punishment consisted of reduction to    E-4, forfeiture of $907 pay x 2 months, extra duty for 45 days and restriction for 45 days, (FG). 

2.  The record contains a CID Report of Investigation, dated 13 September 2004, which indicated the applicant was under investigation for possession of cocaine.

3.  Two successful NCOERs covering the periods of June 2002 through December 2003. 

4.  The record contains two negative counseling statements that were dated, 21 September 2004 and 14 October 2004, for possessing crack cocaine and drug paraphernalia and wrongfully using a controlled substance.


5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 30 November 2004, which indicated the applicant was diagnosed with an adjustment disorder with mixed anxiety and depression-resolving; however, he was psychiatrically cleared for any administrative action deemed appropriate by command.

6.  The record of evidence also contains a positive urinalysis report coded CO (Competence for Duty/Command Directed/Fitness for Duty), dated 2 September 2004 for cocaine.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, Memorandum, Request for Retention (three pages), ARCOM Citation, five AAM Citations, NCOER (one page), Diploma, Primary Leadership Development Course, two certificates of training, Enlistment/Reenlistment Document, Armed Forces of the United States, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant stated he held a successful job with the same company for eight years.

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 record of service, his military records, the issues and documents 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.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant’s service record contains a DD Form 2624 (Specimen Custody Document for Drug Testing) that shows the urinalysis test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty.”  The Limited Use Policy applies to this test basis, per AR 600-85.  However, the evidence of record contains CID Report that indicated that on 2 September 2004, the applicant was arrested by the Frankfurt German Police for possessing of approximately .33 grams of crack cocaine and drug paraphernalia.  The Investigation established probable cause to believe the applicant committed the offense of wrongful possession of a controlled substance when he was found in the possession of cocaine.

5.  In view of the aforementioned, it appears the CO code used on the DD Form 2624 was in all likelihood incorrect and should have been coded PO for “Probable Cause” instead of CO for “Competence for Duty.”  If this was in fact a harmless error, then the rights of the applicant were not prejudiced by the error in his file.  The evidence in the record did not create a substantial doubt that the discharge would have been any different if the error had not been made.

6.  The applicant contends his discharge was based on an isolated incident during five years of service with no other adverse action. Although an isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization.  The applicant's isolated incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 


7.  The applicant further contends prior to the incident he had been in the hospital the week before; he was experiencing medical issues, which he was nervous about and was not in an excellent state of mind.  The applicant bears the burden of presenting substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he experienced medical issues and was not in his right state of mind.

8.  Further, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  

9.  The applicant further contends since being discharged from the military he has not been in trouble again and stayed away from drugs.  The applicant is to be commended for his effort.  This contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.

10.  The applicant desires a second chance to correct a major mistake.  The applicant desires to rejoin the military service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

11.  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:  NA

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character  	Change:  3	No Change:  2
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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20130008255



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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