IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 April 2014

      CASE NUMBER:  	AR20130012363
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board noted that the government introduced a document into the discharge process revealing the applicant was admitted into the Army Substance Abuse Program (ASAP) for substance abuse.  This is limited use information as defined in AR 600-85.  Use of this information mandates award of an honorable discharge.  Accordingly, the Board voted to change the characterization of service to honorable.  The Board found the reason for discharge was fully supported by the record and voted not to change it.  





      
      
      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 that his general, under honorable conditions discharge be upgraded to honorable.  

2.  The applicant states, in effect, based on the senior defense counselor’s memorandum dated 2 October 2012, he should have received an honorable discharge based on limited use evidence; in that a positive test results from his rehabilitation treatment program was used which was protected evidence according to AR 600-85.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			26 June 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				31 October 2012
d. Reason/Authority/SPD/RE Code:		Misconduct (Drug Abuse), AR 635-200,
Chapter 14-12c, JKK, RE-4
e. Unit of assignment:				Headquarters & Headquarters Company,
3rd Battalion, 66th Armor Regiment,
172nd Infantry Brigade, Vilseck, Germany
f. Current Enlistment Date/Term:		8 June 2009, 5 years, 38 weeks
g. Current Enlistment Service:		3 years, 4 months, 23 days
h. Total Service:				3 years, 4 months, 23 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		91J10, Quartermaster & Chemical Repairer
m. GT Score:					92
n. Education:					HS Grad
o. Overseas Service:				Southwest Asia, Germany
p. Combat Service:				Afghanistan (110717-120113)
q. Decorations/Awards:			NDSM, GWOTSM, ACMw2-CS, NATOM,
ASR, OSR
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 8 June 2009, for a period of 5 years and 
38 weeks.  He was 17 years old at the time of entry and a high school graduate.  He served in Germany and Afghanistan.  At the time his discharge proceedings were initiated he was stationed in Germany.  The applicant’s record does not show any significant achievements or acts of valor.  He earned the ACM w2-CS and a NATOM and completed 3 years, 4 months, and 23 days of active duty service. 

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 28 September 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c (2), by reason of misconduct-abuse of illegal drugs; specifically for: 

	a. receiving a Field Grade Article 15 for violating Article 112a by wrongfully using a controlled substance (111206).
	b. receiving another Field Grade Article 15 for violating two specifications of Article 12a by wrongfully using a controlled substance (120703).

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 

3.  On 2 October 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. 

4.  On 3 October 2012, the intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

5.  The separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of general, under honorable conditions.  

6.  The applicant was separated on 31 October 2012, under Army Regulation 635-200, Chapter 14-12c (2), with a general, under honorable conditions discharge, an SPD code of JKK, and an RE code of 4.   

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are three positive urinalysis reports contained in the record: RO, Rehabilitation Testing, 24 April 2012, marijuana, IU, Inspection Unit, 8 July 2011, marijuana, IR, Random Sample, 23 May 2012, 

2.  Article 15 dated 7 October 2011, for wrongfully using marijuana between on or about (110608-110708).  The punishment consisted of reduction to the grade of E-1, forfeiture of $733.00 pay per month for two months, and extra duty for 45 days (FG). 

3.  Article 15, dated 3 July 2012, for wrongfully using marijuana x 2 between on or about (120424) and (120523).  The punishment consisted of reduction to the grade of E-1, forfeiture of $745.00 pay per month for two months, suspended, extra duty and restriction for 45 days (FG).  

4.  Two negative counseling statements dated between 19 June 2012 and 30 August 2011, for wrongfully using, possessing or distributing a controlled substance while he was on block leave, and for notification of pending administrative separation.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted a copy of the senior defense counsel memorandum dated 2 October 2012. 

POST-SERVICE ACTIVITY: 

The applicant did not submit 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.

DISCUSSION AND RECOMMENDATION:

1.  After a careful review of all the applicant’s military records, the issue and document submitted with the application, the characterization of service appears to be improper.  

2.  The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 24 April 2012, which was coded RO (Rehabilitation) and that it was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant’s rehabilitation program.  Use of this information mandates award of an honorable characterization of service.  

3.  Therefore, the characterization of service being improper, recommend the Board grant full relief by upgrading the applicant’s characterization to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.   

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

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  25 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  5	No Change:  0
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:	Honorable
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)		AR20130012363



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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