IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 December 2013

      CASE NUMBER:  	AR20130008865
___________________________________________________________________________

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 characterization was improper.  

2.  The record shows the government introduced into the discharge packet the results of two biochemical tests which were coded RO (Rehabilitation) and that they were part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in AR 600-85 and is protected evidence because the tests were administered as part of the applicant’s rehabilitation program.  Use of this information mandates award of an honorable characterization of service.  

3.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was proper and equitable and the Board 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 discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that his discharge was the result of one mistake.  He contends that at the time of discharge he was young, scared and thinking of nothing but going to war.  He contends he never expressed his feelings but would block them; he did not know how to handle the stress and mental mind strain of everything.  He is now a private investigator for a large investigation company and has obtained his Associate of Arts Degree in business.  He does not want his one mistake to follow him for the rest of his life and believes he deserves to have his discharge upgraded.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		6 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			13 June 2006
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			HHT, 1st Sqd, 89th Cav Rgt, Fort Drum, NY
f. Current Enlistment Date/Term:	5 May 2005, 3 years and 16 weeks
g. Current Enlistment Service:	1 year, 1 month, 9 days
h. Total Service:			1 year, 1 month, 9 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	11C10, Indirect Fire Infantryman
m. GT Score:				103
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 5 May 2005, for a period of 3 years and           16 weeks.  He was 24 years old at the time of entry and a high school graduate.  The applicant was serving at Fort Drum, NY when separation action was initiated against him.  His record does not contain any evidence of acts of valor or meritorious achievements.  He completed a total of 1 year, 1 month, and 9 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 19 April 2006, 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 (serious offense) for wrongfully using marijuana between (060114 and 060213).

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 20 April 2006, the applicant waived his right to consult 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.  However, the statement is not contained in the file.

4.  The separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provision of Chapter 14, paragraph14-12c, AR 635-200.

5.  The applicant was discharged from the Army on 13 June 2006, 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), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

6.  The applicant’s 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 coded; IR (Inspection Random),       18 January 2006, THC/marijuana.

2.  There is a positive urinalysis report contained in the record coded; RO (Rehabilitation Testing), 10 February 2006, THC/marijuana.

3.  There is a positive urinalysis report contained in the record coded; RO (Rehabilitation Testing) and IU (Inspection Unit), 13 February 2006, THC/marijuana.
4.  An CID Report, dated 9 February 2006, that indicates the applicant was the subject of an investigation for the wrongful use of marijuana.

5.  Article 15, imposed on 14 February 2006, for wrongfully using marijuana between (051219 and 060118).  The punishment consisted of reduction to the grade of E-1, forfeiture of $713.00 per month for two months, and 45 days of extra duty and restriction (FG).  

6.  Article 15, imposed on 14 March 2006, for being derelict in the performance of his duties (060217) and wrongfully using marijuana between (060111 and 060210).  The punishment consisted of forfeiture of $636.00 per month for two months, and 45 days of extra duty and restriction (FG).  

7.  Mental Status Evaluation Report, dated 16 February 2006, which indicates the applicant was diagnosed with cannabis abuse and alcohol abuse.  The report also indicates he had the mental capacity to understand and participate in the proceedings, was mentally responsible, was psychologically cleared for administrative action deemed appropriated by his command, and that it was recommended that he follow-up with the Army Substance Abuse Program.

8.  Three negative counseling statements dated between 1 February 2006 and 17 March 2006, for testing positive for THC on a urinalysis test on 18 January 2006 and 31 January 2006 and for testing positive again for THC on 10 February 2006 and 13 February 2006 IAW ASAP requirements; resulting in notification for separation under Chapter 14-12c. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a letter of recommendation from the Officer of the District Attorney, business cards from the watch deputy and constable, and a copy of his Associate of Arts degree certificate.

POST-SERVICE ACTIVITY: 

The applicant states he is now a private investigator for a large investigation company and has obtained his associate of arts degree in business.

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 issues 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 two biochemical test conducted on 10 February 2006 and 13 February 2006, which were coded RO (Rehabilitation) 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 and is protected evidence because the tests were 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:  Record Review      Date:  9 December 2013       Location: Washington, DC

Did the Applicant Testify?  NA

Counsel: None

Witnesses/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)		AR20130008865



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1