IN THE CASE OF:	Mr. 

      BOARD DATE: 	5 March 2014

      CASE NUMBER: 	AR20130010434
___________________________________________________________________________

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 to be both proper and equitable and voted to deny relief.  

2.  However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26 and 28, contain erroneous entries.  

3.  The Board directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority:

	a.	change block 25, separation authority to AR 635-200, paragraph 14-12c;
	b.	change block 26, separation code to JKQ; and
	c.	change block 28, narrative reason for separation to Misconduct (Serious Offense).  




      
      
      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 upgrade the characterization of his service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, he served for two years and was discharged when he tested positive for marijuana.  He strongly believes having over a decade of listing his service as general, under honorable conditions is enough and would like an upgrade to honorable at this time.  If not for the one mistake, he would still be serving his country proudly.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	3 June 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	2 December 2002
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12c(2), 
			JKK, RE-3
	e.	Unit of assignment:	HHC, 1st Bn, 16th Infantry, 1st Bde, 1st Infantry 
			Division, Fort Riley, KS
	f.	Current Enlistment Date/Term:	1 August 2001, 4 years
	g.	Current Enlistment Service:	1 year, 4 months, 2 days
	h.	Total Service:	1 year, 4 months, 2 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	91W10, Medical Specialist
	m.	GT Score:	125
	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 1 August 2001, for a period of 4 years.  He was 18 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievement.  He completed 1 year, 4 months, and 2 days of active duty service.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 29 October 2002, 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), specifically for:

	a.	grossly disregarding Army rules and regulations; 
	b.	being a disruptive influence in the unit; 
	c.	demonstrating inability to comply with basic soldiering requirements and higher authority; 
	d.	receiving two Article 15 punishments for failing to be at his appointed place of duty, dereliction of duty, and wrongfully using marijuana; and
	e.	being barred from reenlistment due to wrongful use of 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 29 October 2002, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit 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 31 October 2002, 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 2 December 2002, 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, a Separation Program Designator code (SPD) of JKK and an RE code of 3. 

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:  IU, Inspection Unit, 8 July 2002, marijuana.

2.  Article 15, dated 9 August 2002, for wrongfully using marijuana (020609-020708).  The punishment consisted of forfeiture of $550 per month for two months and 45 days of extra, (FG). 

3.  Article 15, dated 12 July 2002, for failing to go to his appointed place of duty (020621), being derelict in the performance of his duties (020625).  The punishment consisted of reduction to the grade of E-1, forfeiture of $257 (suspended), 14 days of extra duty and 14 days of restriction (suspended), (CG).

4.  Three negative counseling statements, dated between 21 June 2001 and 25 July 2002, for failing to obey orders, and testing positive for THC during a drug urinalysis. 

5.  CID Report, dated 29 August 2002, that indicates the applicant was the subject of an investigation for wrongful growing/manufacturing of marijuana, wrongful possession of marijuana and drug paraphernalia, and wrongful use of marijuana.

6.  Approved bar to reenlistment, dated 7 August 2002.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

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.  

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, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  However, the service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct, authority as AR 635-200, paragraph 14-12c(2), and SPD code of JKK.  However, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct (serious offense).  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that Soldiers processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3.

3.  The record confirms 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 the serious incidents of misconduct, which included 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 the serious incidents of misconduct and abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by two Article 15 actions multiple violations of the Uniform Code of Military Justice and negative counseling statements.

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’s issue about an upgrade based on the time that has elapsed since the discharge was carefully considered.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable.

5.  The applicant contends the incident that caused his discharge was the only one in his two years of service.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's serious incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  

6.  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.  

7.  Therefore, the characterization of service being both, proper and equitable, recommend the Board deny relief.  However, recommend the Board make the following changes:  

	a.	change block 25, separation authority to AR 635-200, paragraph 14-12c;
	b.	change block 26, separation code to JKQ; and
	c.	change block 28, narrative reason for separation to Misconduct (Serious Offense).  



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  5 March 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:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct (Serious Offense)
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12c
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code JKQ



















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)		AR20130010434

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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