IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 January 2014

      CASE NUMBER:  	AR20130009031
___________________________________________________________________________

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 from general, under honorable conditions to honorable.

2.  The applicant states, in effect, he believes his record to be in error or unjust because he never had a drug offense in his life or in the Army before the incident.  He also completed 75 percent of his contract which included a combat tour.   
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			29 March 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4        
e. Unit of assignment:			63rd Ord Co, 13th CSSB, 593rd Sus Bde, JB Lewis-						McChord, WA
f. Current Enlistment Date/Term:	30 April 2009, 4 years
g. Current Enlistment Service:	2 years, 10 months, 21 days
h. Total Service:			2 years, 10 months, 21 days
i. Time Lost:				10 days (091222-091231); reason for lost time NIF
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-2	
l. Military Occupational Specialty:	89B10, Ammunition Specialist 
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (100102-100813)
q. Decorations/Awards:		NDSM, ICM-CS, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		No	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 30 April 2009 for a period of 4 years.  He was 20 years old at the time of entry and was a high school graduate.  He was serving at Joint Base Lewis-McChord, WA when his discharge was initiated.  His record does not contain any meritorious achievements or acts of valor.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 1 March 2012, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c(2) for misconduct-abuse of illegal drugs, specifically for wrongfully using spice on 6 October 2011.  

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 7 March 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in 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 an under honorable conditions discharge.  

4.  On 15 March 2012, 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 29 March 2012, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with an SPD Code of JKK, and RE 
code of 4.

6.  The applicant's DD Form 214 shows 10 days of lost time; however, the reason for the lost time is not reflected in the record.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is one positive urinalysis report contained in the record: PO, Probable Cause, 6 October 2011, spice 
	
2.  Article 15, dated 30 January 2012, for wrongfully using spice (111006).  The punishment consisted of a reduction to E-1, forfeiture of $745.00 pay for 2 months (suspended until 120529), extra duty for 45 days, and restriction for 45 days (FG).  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, dated 5 May 2013, and a DD Form 214.   

POST-SERVICE ACTIVITY: 

None were provided 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.

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, paragraph 14-12c(2), for 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’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s service record 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 that 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 abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of 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 the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the discharge is in error, or is an injustice, because he has never had a drug offense in his life before the incident.  However, the applicant's positive urinalysis test was a result of a command directed probable cause (PO).  Such testing has been upheld by civilian and military courts as lawful and does not violate the US Constitutional protections against unreasonable search and seizure under the Fourth Amendment, self-incrimination under the Fifth Amendment, nor does it violate Article 31 of the Uniform Code of Military Justice.  In addition, military orders to produce a urine sample have been upheld in court as both legal and lawful and essential to military discipline.  

5.  The applicant contends he completed 75 percent of his enlistment contract, which included a combat tour, had good service, and deserves an honorable characterization.  However, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge.  

6.  The records show the proper discharge and separation authority procedures were followed in this case.  

7.  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:  8 January 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 












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:	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)		AR20130009031



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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