IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 February 2014

      CASE NUMBER:  	AR20130010936
___________________________________________________________________________

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 and a change to the narrative reason for separation.

2.  He states, in effect, his discharge is inequitable because it was based on a single incident during more than three years of service.  He was not afforded the opportunity for rehabilitation and no rehabilitation efforts were made on his behalf.  He does not believe his separation was equitable.  He served on active duty for nearly three years including two tours overseas and received an AAM for each tour.  He was never in trouble with the military or civilian authorities, and always tried to do his duty to the best of his ability.  He made a mistake by trying spice as a way to cope with his feelings of loneliness and stress.  He desires to pursue a career in law enforcement with the Montgomery County Sheriff’s Department, unless his discharge is upgraded, it is unlikely he will be able to do so.  He desires to join the Alabama Army National Guard and continue his military service as a reservist.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 June 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			30 April 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			54th Quartermaster Company, 530th Combat 							Sustainment Support Battalion, Fort Lee, VA
f. Current Enlistment Date/Term:	13 January 2009, 3 years and 20 weeks
g. Current Enlistment Service:	3 years, 3 months, 18 days
h. Total Service:			3 years, 3 months, 18 days
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92M10, Mortuary Affairs Specialist
m. GT Score:				88
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (091016-100515)
q. Decorations/Awards:		AAM-3, AGCM, NDSM, ICM-W/CS, GWOTSM, ASR 						Administrative Separation Board: 	No
r. Performance Ratings:		None
s. Counseling Statements:		Yes
t. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 13 January 2009, for a period of 4 years and 20 weeks.  He was 23 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 92M10, Mortuary Affairs Specialist.  His record also shows he served a combat tour, earned several awards including an AAM-3, and AGCM.  He achieved the rank of SPC/E-4.  He was serving at Fort Lee, VA when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 3 April 2012, 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-commission of a serious offense for wrongfully possessing spice, a scheduled II substance.

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 5 April 2012, the applicant waived legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board (although he was not entitled to a board), and submitted 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 of a general, under honorable conditions discharge.

4.  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 30 April 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ 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.  A Field Grade Article 15, dated 15 March 2012; the punishment consisted of reduction to   E-2, forfeiture of $835 pay x 2 months (suspended), and extra duty for 45 days.  However, this document is not contained in the available record, see unit commander’s recommendation memorandum.

2.  The applicant received two negative counseling statements, dated 16 February 2012 and   26 March 2012 for possessing drug paraphernalia and spice in his barracks room, and being notified of administrative discharge proceedings.

3.  DA Form 3822-R (Report of Mental Status Evaluation), dated 21 May 2012, which indicated the applicant was psychiatrically cleared for any administrative action deemed appropriate by command.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, three supporting statements, and a DD Form 214.

POST-SERVICE ACTIVITY:

The applicant stated he has been gainfully employed with Dynamic Security, Inc. since July 2012.

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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3.
DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for separation was carefully considered.  However, after examining the applicant’s record of service, his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.

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 possessing 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 an Article 15, and two negative counseling statements.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant requested a change to the narrative reason for separation.  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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense).  The regulation further stipulates that no deviation is authorized.  

5.  The applicant contends his discharge is inequitable because it was based on a single incident during more than three years of service; he does not believe his separation was equitable.  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 incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 

6.  The applicant further contends he was not afforded the opportunity for rehabilitation and no rehabilitation efforts were made on his behalf.  The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

7.  Further, 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.  

8.  The applicant also contends he served on active duty for nearly three years including two tours overseas and received an AAM for each tour.  The applicant’s service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding was carefully considered.  However, this service was determined not to be sufficiently mitigating to overcome the reason for discharge and characterization of service granted.

9.  The applicant additionally contends he was never in trouble with the military or civilian authorities, and he always tried to do his duty to the best of his ability.  The applicant is to be commended for his efforts.  However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor was it associated with the discharge at the time it was issued.  

10.  Furthermore, the applicant contends he made a mistake by trying spice as a way to cope with his feelings of loneliness and stress.  He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

11.  The applicant desires to pursue a career in law enforcement with the Montgomery County Sheriff’s Department; unless his discharge is upgraded, it is unlikely he will be able to do so.  The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

12.  The applicant desires to join the Alabama Army National Guard and continue his military service as a reservist.  Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There is no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

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

14.  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:  7 February 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)		AR20130010936



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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