IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 April 2014

      CASE NUMBER:  	AR20130011883
___________________________________________________________________________

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 change the narrative reason for separation from misconduct (drug abuse) to reflect, at a minimum, misconduct only.  

2.  The applicant states, in effect, that he was discharged in spite of the fact that he was enrolled in the Army substance Abuse Program (ASAP) and seeing a psychologist on a weekly basis upon his return from a tour in Iraq.  He was diagnosed with Post Traumatic Stress Disorder (PTSD) in January 2010.  He is unable to obtain quality employment with his discharge reflecting him as a “drug abuser.”  He is seeking to delete “drug abuse” from his narrative reasoning for a second chance at becoming a notable citizen.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 June 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			19 July 2010 
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2)						JKK, RE-4        
e. Unit of assignment:			HHC, 308th MI Bn, 902d MI Grp, Fort Meade, MD 
f. Current Enlistment Date/Term:	25 July 2006, 4 years and 22 weeks 
g. Current Enlistment Service:	3 years, 11 months, 25 days
h. Total Service:			3 years, 11 months, 25 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-5	
l. Military Occupational Specialty:	42A10, Human Resources Specialist
m. GT Score:				91
n. Education:				HS Graduate
o. Overseas Service:			Korea, SWA
p. Combat Service:			Iraq (080614-081224)
q. Decorations/Awards:		JSCM, AAM-2, AGCM, NDSM, ICM-AH, GWOTSM						KDSM, PDR, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 25 July 2006, for a period of 4 years and 22 weeks.  He was 19 years old at the time of entry and was a high graduate.  He was serving at Fort Meade, MD when his discharge was initiated.  The service record also shows the applicant received several awards including a JSCM, AAM-2, and a AGCM.  He achieved the rank of E-5 and served a combat tour in Iraq.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence shows that the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct-abuse of illegal drugs, specifically for testing positive for the drug THC on 
23 April 2010.  

2.   28 June 2010, 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 June 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action 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 of the separation with a general, under honorable conditions discharge.  

4.  On 1 July 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 was discharged from the Army on 19 July 2010, for misconduct (drug abuse), under the provisions of AR 635-200, paragraph 14-12c(2), with an SPD Code of JKK, and an RE code of 4.

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is one positive urinalysis reports contained in the record with allied documents:

 	IR, Inspection Random, 23 April 2010, THC 

2.  Article 15, dated 14 June 2010, for wrongfully using marijuana, (100324-100423).  The punishment consisted of a reduction to the grade of E-4, forfeiture of $100.00 pay per month for one month, extra duty for 15 days, restriction for 30 days, and an oral reprimand (FG). 

3.  One negative counseling statement, dated 17 May 2010, for testing positive for marijuana.

4.  One Relief for Cause (RFC) Noncommissioned Officer Evaluation Report (NCOER), covering the rating period of 1 March 2010 to 14 June 2010.  The basis of the evaluation was the applicant’s violation of the Army’s substance abuse policy.   
5.  A treatment summary of the applicant’s progress in the Army Substance Abuse Program (ASAP), dated 10 March 2010. 
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 19 June 2013; a DD Form 214; a self-authored statement from the applicant, dated 19 June 2013; two successful NCOERs with the ending periods 28 February 2010, and 14 July 2009; five character statements in support of the applicant’s request; and a copy of the applicant’s chronological record of medical care.    

POST-SERVICE ACTIVITY: 

The applicant states he is pursuing his civilian education by attending community college majoring in health, fitness, and exercise. He is also employed at a fitness health club.    

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 a change to the reason for his discharge was carefully considered.  However, after examining the applicant’s service record, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for the discharge.    

2.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in an 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 that ultimately caused his discharge from the Army.

3.  The applicant contends that a change in the reason for the discharge would allow for his ability to obtain quality employment and become a notable citizen.  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 "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 drug offenses.  The regulation further stipulates that no deviation is authorized.  

4.  The applicant contends he was discharged in spite of the fact that he was enrolled into the ASAP and seeing a psychologist on a weekly basis.  However, the applicant's positive urinalysis test was a result of the command’s random urine testing program to maintain good order and discipline within the unit.  Such random 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 was diagnosed with PTSD in January 2010.  However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

6.  The applicant contends that a change to the narrative reason for separation will allow him to obtain better employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

7.  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.

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

9.  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:  9 April 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)		AR20130011883



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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