IN THE CASE OF:	Mr. 

      BOARD DATE:  	28 March 2014

      CASE NUMBER:  	AR20130011175
___________________________________________________________________________

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

2.  The applicant states, in effect, there is no justification for his actions and the reason he has to complete his current application.  He has been living with the consequences of his mistake for the past several years.  He was deployed to Iraq and upon return, he decided to partake in the use of marijuana.  He let his unit, friends, and himself down.  He had a wonderful and spotless military career until he decided to ruin it.  He is glad he was caught because he dealt with his failure, as a Soldier and as a person.  Since his separation, he worked odd jobs, in factories, malls, and sold furniture while he attended college.  He questioned whether he would ever reach his potential.  He is happy he held all of those positions because they placed food on his table and aided in the progressive course of his life.  He is currently employed as a police officer for the past two years.  He helped many people with their lives, and has taken a stance against drugs and their effects because he knows how bad they can throw one’s life off kilter.  He plans to graduate from college at the end of the 2013 fall semester. He aspires to work at the federal level of law enforcement so that he can make a better impact on society, and regain the trust he took for granted nearly seven years ago. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	17 June 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	27 April 2007
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	B Co, 626th BSB, Fort Campbell, KY
	f.	Current Enlistment Date/Term:	29 May 2006, 5 years
	g.	Current Enlistment Service:	4 years, 0 months, 13 days
	h.	Total Service:	4 years, 0 months, 13 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (030415-060528) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	25U10, Signal Support System Specialist
	m.	GT Score:	99
	n.	Education:	HS Graduate
	o.	Overseas Service:	Korea, SWA
	p.	Combat Service:	Iraq (050919-060910)
	q.	Decorations/Awards:	ARCOM-3; AAM-2; AGCM; NDSM; ICM; GWOTSM;
			KDSM; ASR; OSR-2
	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 15 April 2003, and reenlisted on 29 May 2006, for a period of 5 years.  He was 19 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 25U10, Signal Support System Specialist.  He served in Korea and Iraq.  He earned three ARCOM and two AAM awards.  He completed 4 years and 13 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 13 February 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for commission of a serious offense, specifically for testing positive for marijuana on a urinalysis.

2.  Based on the above misconduct, the unit commander recommended an honorable or general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 26 March 2007, 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 16 April 2007, 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 27 April 2007, 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.   There is a positive urinalysis report contained in the record: IU, Inspection – Unit, collected on 23 October 2006, indicates positive for marijuana.

2.  Article 15, dated 28 December 2006, for wrongfully using marijuana (060923-061023).  The punishment consisted of reduction to E-4, forfeiture of $921 per month for two months, 45 days of extra duty and 45 days of restriction (suspended), (FG).  

3.  One negative counseling statement, dated 7 November 2006, for violation of Article 112a, UCMJ for wrongful use, possession of a controlled substance.  
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.  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 violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as an NCO, 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 his service below that meriting an honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice and a negative counseling statement.

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 remorsefully regrets his actions, and contends he had good service and deserves an honorable characterization.  The applicant’s service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.  Moreover, 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.  Furthermore, although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  

5.  The applicant contends that since leaving the Army he has been employed continuously since with odd jobs in factories, malls, and sold furniture while he attended college.  For over two years he held a position as a police officer and plans to graduate from college in 2013.  The applicant’s post-service accomplishments have been noted as outlined in the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  

6.  The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

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

8.  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:  28 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:		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)		AR20130011175

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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