IN THE CASE OF:	

      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR20130008673
___________________________________________________________________________

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 to change the narrative reason for his discharge.  Although, the applicant did not properly annotate the enclosed application requesting a possible discharge upgrade, his request will be considered for a change to an honorable discharge according to Department of Defense Instruction 1332.28.

2.  The applicant states, in effect, the incident that led to his discharge was his first offense.  He had never been in trouble.  He was under a lot of stress due to his upcoming deployment and that his wife was cheating on him with his NCO during his first deployment.  He was worried that it was still going on.  At the time of this incident, his wife was pregnant with their twins.  His command would not give him the help he needed.  He had no one to go to for help.  Their only answer was for him to be separated from the Army.  He concludes that he has grown considerably since his separation from the Army.  He has resolved his family issues.  He has more to give and wakes, breathe, and sleeps Army as his life is all about serving his country.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	3 May 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	10 May 2010
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	Co C, 1st Bn, 66th Armor Regiment, 1st Heavy 
			BCT, Fort Carson, CO
	f.	Current Enlistment Date/Term:	29 July 2008, 5 years
	g.	Current Enlistment Service:	1 year, 9 months, 12 days
	h.	Total Service:	3 years, 3 months, 4 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (070207-080728) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	19K10, M1 Armor Crewman
	m.	GT Score:	87
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq
	q.	Decorations/Awards:	ARCOM; NDSM; ICM-AH; GWOTSM; ASR; OSR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes 
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The record shows the applicant enlisted in the Regular Army on 7 February 2007, and reenlisted on 29 July 2008, for a period of 5 years.  He was 26 years old during his initial entry and had a high school equivalency (GED).  He served in Iraq.  He earned an ARCOM.  He completed 3 years, 3 months, and 4 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 17 February 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), for having wrongfully used a controlled substance, to wit: marijuana.  

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 18 February 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action 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 17 March 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 10 May 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 service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record:  IR, Inspection Random, 2 November 2009, marijuana.

2.  Article 15, dated 19 January 2010, for wrongfully using marijuana (091004-091102).  The punishment consisted of reduction to the grade of E-1 (suspended), forfeiture of $699 per month for two months (suspended), 45 days of extra duty and restriction, (FG). 

3.  Two negative counseling statements, dated 3 December 2009 and 20 January 2010, for having failed a urinalysis test.

4.  Army Substance Abuse Program Enrollment indicates the applicant was command referred on 7 December 2009.

5.  Mental Health evaluation, dated 21 January 2010, indicates an initial service plan and the applicant having “PTSD sxs” (1-none to 10-worst), he was currently at 7, with a goal to 2-3.

6.  DA Form 3822, Report of Mental Status Evaluation, dated 26 January 2010, indicates a review of psychiatric and medical history, and diagnosis of AXIS I: Adjustment Disorder with mixed disturbance of emotions and conduct; AXIS III: Deferred; and AXIS III: referred to his medical records.

7.  DD Forms 2807-1, Report of Medical History dated 12 January 2010, reflects the examiner’s summary based on his interview with the applicant on medical history, which included the applicant having been evaluated by his primary care manager and mental health.

8.  DD Form 2808, Report of Medical Examination, dated 12 January 2010, reports a summary of defects and diagnosis resulting from the medical examination of the applicant.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DA Form 2627, Record of Proceedings under Article 15, UCMJ, dated 19 January 2010.

POST-SERVICE ACTIVITY: 

The applicant provided 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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board would consider the applicant for a possible upgrade as instructed, in pertinent part, by Department of Defense Instruction 1332.28, which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.

2.  Accordingly, the applicant’s request for a change to the reason for his discharge and a change to an honorable was carefully considered.  However, after examining the applicant’s service record, the document and the issues submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for the discharge.  

3.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special 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 that ultimately caused his discharge from the Army.

4.  The applicant expressed a desire of serving his country, and that a change in the reason for the discharge and his reentry code would allow for his reenlistment.  However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), for drug offenses.  The regulation further stipulates that no deviation is authorized.  

5.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.  

6.  The applicant contends he had family issues that caused stress during an upcoming deployment, and his chain of command would not assist him.  However, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by enrolling him in ASAP, providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.  

7.  Furthermore, the applicant’s service record contains documentation that indicates a diagnosis of in service Post-Traumatic Stress Disorder (PTSD); however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  

8.  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.  

9.  Therefore, the reason for discharge and the characterization being both proper and equitable, recommend the Board deny relief.


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:  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 Authority for Separation:		No Change
Change RE Code to:			No Change
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)		AR20130008673



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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