IN THE CASE OF:	Mr. 

      BOARD DATE:  	6 November 2013

      CASE NUMBER: 	AR20130008257
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, the Board voted to change the applicant’s reason for discharge, authority, and separation code on the basis of equity as it had been approved by the separation authority.  The Board directed the DD Form 214 be reissued with the following changes:

      a. block 25, separation authority changed to AR 635-200, paragraph 14-12c
      b. block 26, separation code changed to JKQ
      c. block 28, narrative reason for separation changed to Misconduct (Serious Offense) 

3.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable.




      
      
      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 to upgrade his characterization of service from general, under honorable conditions to fully honorable.  

2.  The applicant states, in effect, his discharge was improper, because he was used as an example to his unit.  Before this incident, he had no prior negative actions.  He wanted to stay and continue to serve out his term, but he was not allowed to.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	29 April 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	8 February 2010
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	Rear Detachment Company (27th), 30th Engr Bn 
			(Provisional), 20th Engr Bde (Combat) (Airborne) 
			Fort Bragg, NC
	f.	Current Enlistment Date/Term:	8 January 2008, 4 years
	g.	Current Enlistment Service:	1 year, 9 months, 23 days
	h.	Total Service:	1 year, 9 months, 23 days
	i.	Time Lost:	100 days 
	j.	Previous Discharges:	None 
	k.	Highest Grade Achieved:	E-3 
	l.	Military Occupational Specialty:	21E1P, Construction Equipment Operator
	m.	GT Score:	97
	n.	Education:	GED
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; 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 8 January 2008, for a period of 4 years.  He was 26 years old at the time of entry and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 21E1P, Construction Equipment Operator.  His record documents no acts of valor or significant achievement.  He completed 1 year, 9 months, and 23 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 4 January 2010, 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 misconduct (serious offense), specifically for being absent without leave (AWOL) (090720-091005), and testing positive for THC (090703).

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 4 January 2008, 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 13 January 2010, 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 8 February 2010, 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), a Separation Program Designator code (SPD) of JKK and an RE code of 4.   

6.  The applicant's record shows he was absent without leave (AWOL) during the period 20 July 2009 through 4 October 2009, and records indicate he returned to military control.  The record further shows he was confined by military authorities during the period 1 December 2009 through 23 December 2009.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record: IU, Inspection Unit, 30 June 2009, marijuana.

2.  DD Form 458, Charge Sheet, reflects two charges were preferred on 2 November 2009:  Charge I, violation of Article 86, UCMJ, AWOL (090721-091005), and Charge II, violation of Article 112a, UCMJ, for wrongful use of marijuana (090530-090630).  The charges were referred to a summary court-martial on 24 November 2009.  

3.  DD Form 2707, Confinement Order, dated 1 December 2009, indicates the applicant was convicted by a summary court-martial and received a sentence of reduction to Private E-2, forfeiture of two-thirds pay per month for one month, and 30 days confinement.

4.  DA Form 4430, Report of Result of Trial, reports the applicant’s summary court-martial findings and sentence. 
5.  Three negative counseling statements, dated 20 August 2009 and 7 October 2009, for failing to report for duty; failing a command administered drug screening urinalysis; and being absent without leave.

6.  Two separate personnel actions that report the applicant’s duty status from present for duty to confinement by military authorities (091201), and confinement by military authorities to present for duty (091224).

7.  DD Form 2718, Inmate’s Release Order, dated 24 December 2009, indicates the applicant was released from serving the remainder of his sentence, because it was remitted.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant states none. 

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, 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 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 serious incidents of misconduct, abusing illegal drugs and being AWOL, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by a summary court-martial for violations of the Uniform Code of Military Justice and negative counseling statements.

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 his discharge was improper because he was used as an example.  However, 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.  

5.  The applicant contends that he had good service with no prior negative action.  The applicant’s quality of 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 the serious incidents of misconduct and by the summary court-martial for violations of the Uniform Code of Military Justice.

6.  The applicant contends he wanted to stay and continue his service, but was not allowed to do so.  The applicant’s record of misconduct involving serious incidents were discrediting entries that 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 a single incident provides the basis for separation and characterization.  The applicant's serious incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  Further, 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 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

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:  6 November 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	3	No Change:  2
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct (Serious Offense)
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12c
Change RE Code to:		NA
Grade Restoration to:		NA
Other:  				Separation Program Designator (SPD) code JKQ





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)		AR20130008257

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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