IN THE CASE OF:  	

      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR20130008323
___________________________________________________________________________

Board Determination and Directed Action

1.  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.  

2.  The evidence indicates the applicant was entitled to an administrative separation board because he had over 6 years of total active and reserve military service at the time of initiation of the separation action.  The evidence of record shows the applicant voluntarily waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service of no less favorable than honorable.  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 honorable characterization of service or an administrative separation board and did not waive it either.  Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  

3.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable, the narrative reason for separation to Secretarial Authority, and the RE-Code to 1.






      
      
      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.  He states, in effect, he feels he was wrongfully separated.  He did not receive proper treatment from the R & R center.  He was denied his right to an administrative separation board.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		29 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			27 April 2010
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			G Forward Support Company, 5-82nd Field Artillery 						Regiment, 4th Brigade Combat Team, Fort Hood, TX
f. Current Enlistment Date/Term:	30 January 2008, 4 years and 11 weeks
g. Current Enlistment Service:	2 years, 2 months, 28 days
h. Total Service:			9 years, 10 months, 4 days
i. Lost time:				None
j. Previous Discharges:		USAR (000624-080129)/NA
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92G10, Food Service Operations
m. GT Score:				113
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (080714-90619)
q. Decorations/Awards:		ARCOM, NDSM, ACM-W/CS, GWOTSM, ASR, OSR 						NATO ASM, CAB
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the U.S. Army Reserve on 24 June 2000, for a period of 8 years.  He was 18 years old at the time of entry and a HS Graduate.  His military occupational specialty, characterization of service and discharge date for this period of service was not contained in the available record.  He enlisted in the Regular Army on 30 January 2008, for a period of 4 years and 11 weeks.  He was trained in and awarded military occupational specialty (MOS) 92G10, Food Service Operations.  He was 26 years old at the time.  His record also shows he served a combat tour; he earned several awards including an ARCOM, CAB and he achieved the rank of SPC-E-4.  He was serving at Fort Hood, TX when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 30 March 2010, 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 testing positive for marijuana (100105).

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 31 March 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service of no less favorable than honorable and did not submit a statement on his 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 April 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’s record of service does not contain any documented evidence of unauthorized absences or lost time.

6.  The applicant was discharged from the Army on 27 April 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.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 19 February 2010 for wrongfully using marijuana (091205-100105); the punishment consisted of reduction to E-1, forfeiture of $723 pay x 2 months, extra duty for 45 days and restriction for 45 days, (FG).

2.  The record contains three negative counseling statements, dated 22 January 2010,           25 January 2010 and 23 March 2010; for wrongfully using and possessing of a controlled substance; a positive urinalysis report, a notification to suspend favorable personnel actions and a pending chapter action.

3.  The record of evidence also contains a positive urinalysis report coded IU (Inspection Unit), dated 5 January 2010 for marijuana.
4.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 1 February 2010, which indicated the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in administrative proceedings.  The applicant was cleared for any administrative action deemed appropriate by command.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, and a letter from Professional Counseling Service.

POST-SERVICE ACTIVITY:

The applicant did not provide any 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 record of service, his military records, the issues and documents submitted with the application, the discharge is improper.

2.  The evidence of record confirms that the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and had over six years of total active and reserve military service at the time of initiation of separation action.  The applicant waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service of no less favorable than honorable.  He did not receive an honorable characterization of service nor was his case referred to an administrative separation board and he did not it waive it.  An administrative separation board is a right and required under the provisions of Army Regulation 635-200.  The record reflects that the applicant did not receive an administrative separation board and denial of such a board constituted a prejudicial error to the rights of the applicant and as a result the discharge is improper.  

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

4.  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:  13 November 2013   Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  None

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 RE Code to:			RE Code 1
Grade Restoration to:			NA
Change Authority for Separation:		AR 635-200, paragraph 5-3
Other:						Change 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)		AR20130008323

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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