IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 December 2013

      CASE NUMBER:  	AR20130009477
___________________________________________________________________________

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.  The evidence indicates the applicant requested an administrative separation board and was entitled to one because he had over 6 years of total active and reserve military service at the time of initiation of the separation action.  The Board noted that 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 administrative separation board and did not waive it.  Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  

2.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  This action entails a change to the reentry eligibility (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 and a change to the narrative reason for separation.

2.  He states, in effect, he spent 15 months in a combat zone, exchanged fire with the enemy and earned a Combat Action Badge.  He watched his fair share of people die and even had to put some friends on a plane in a coffin.  With the discharge he received he is paying tuition out of pocket, which he feels is unfair after what he did and went through with the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			19 January 2011
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 								Chapter 14, paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			HHC, 864th Engineer Battalion (Rear) (Provisional) 						Joint Base Lewis-McChord, WA
f. Current Enlistment Date/Term:	3 July 2007, 6 years
g. Current Enlistment Service:	3 years, 2 months, 2 days 
h. Total Service:			7 years, 22 days
i. Lost time:				136 days
j. Previous Discharges:		USAR (030815-040608)/NA									IADT (040609-041022)/NA										USAR-(041023-060411)/NA									RA (060412-070702)/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	12K10, Plumber
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (061124-080224)
q. Decorations/Awards:		ARCOM, AAM, AGCM, NDSM, ACM-W/CS 							GWOTSM, ASR, OSR, NATO MDL, CAB, MUC
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 12 April 2006, for a period of 3 years.  He was 19 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 12K10, Plumber.  He reenlisted on 3 July 2007, for a period of 6 years and was 21 years old at the time.  His record also shows that he served a combat tour; earn several awards including an ARCOM AAM, and a CAB; and he achieved the rank of SGT/E-5.  He was serving at Joint Base Lewis-McChord, WA when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 13 December 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.  Specifically for the following offenses:

     a.  testing positive for cocaine (100222)

     b.  testing positive for marijuana (100818)

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 15 December 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board 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 20 December 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 indicates 136 days of time lost for being AWOL x 4 from 13 April 2010 through 26 April 2010, 28 April 2010 through 17 August 2010, 24 November 2010 through 29 November 2010, and 7 January 2011 through 9 January 2011, mode of return for each period is unknown.

6.  The applicant was discharged from the Army on 19 January 2011, 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 13 December 2010 for wrongfully using marijuana (100718-100818); and without authority absenting himself from his unit (AWOL) x 2 (100413-100427), (100428-100818); the punishment consisted of reduction to E-1, forfeiture of $723 pay, extra duty for 45 days and restriction for 45 days, (FG).

2.  An Article 15, dated 6 March 2010 for wrongfully using cocaine (100218-100222); the punishment consisted of reduction to E-4, forfeiture of $1099 pay x 2 months and extra duty for 45 days, (FG).

3.  The record of evidence contains a positive urinalysis report coded IU (Inspection Unit), dated 22 February 2010 for cocaine.

4.  The record of evidence contains a urinalysis report coded IO (Inspection Other), dated      18 August 2010 for marijuana.

5.  He received eight negative counseling statements, completed between 18 November 2008 and 9 March 2010 for missing formation on more than one occasion, failing to report to his place of duty numerous times, failing to pay a debt, perception of an inappropriate relationship, using, distributing and selling drugs, and a positive urinalysis test.

6.  The record of evidence contains seven DA Forms 4187 (Personnel Action), dated between 13 April 2010 10 January 2011, which indicated the present for duty, AWOL and dropped from rolls dates.

7.  DA Form 3822-R (Report of Mental Status Evaluation), dated 26 March 2010, which indicated the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in any administrative proceedings.

8.  DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment, dated 4 March 2010 which indicated the applicant was command referred to ASAP.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided two online applications and a DD Form 214.

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.

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’s request for an upgrade of the characterization of his discharge was carefully considered.

2.  After a careful review of all the applicant’s military records, the issue and documents submitted with the application, the discharge is improper.  

3.  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 6 years of total active and reserve military service at the time of initiation of separation action.  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.  

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

5.  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:  11 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:	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 Authority for Separation:	AR 635-200, Chapter 5-3
Change RE Code to:		1
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code 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)		AR20130009477



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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