IN THE CASE OF:	Ms. 

      BOARD DATE:	19 March 2014

      CASE NUMBER:	AR20130013109
___________________________________________________________________________

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 her service from under other than honorable to honorable.

2.  The applicant provided no issues.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 July 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	3 November 2010
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	HHC, 1-1 BST Bn, 1st Heavy BCT, 1st Infantry 
			Division, Fort Riley, KS
	f.	Current Enlistment Date/Term:	30 July 2007, 4 years, 20 weeks
	g.	Current Enlistment Service:	3 years, 2 months, 10 days
	h.	Total Service:	3 years, 2 months, 10 days
	i.	Time Lost:	25 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	42A10, Human Resources Specialist
	m.	GT Score:	94
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; ASR
	r.	Administrative Separation Board: 	Yes
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 30 July 2007, for a period of 4 years and 20 weeks.  She was 18 years old at the time of entry and a high school graduate.  She was trained in and awarded military occupational specialty (MOS) 42A10, Human Resources Specialist.  Her record documents no acts of valor or significant achievement.  She completed 3 years, 2 months, and 10 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 16 July 2010, (date the applicant acknowledged receipted of the notification) the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of commission of a serious misconduct – abuse of illegal drugs, specifically for the following incidents: 

	a.	wrongfully possessing marijuana; 
	b.	being AWOL (100526-100603);
	c.	consuming alcohol while under the legal drinking age of 21;
	d.	disobeying her superior commissioned officer by leaving Fort Riley; and
	e.	failing to report to her appointed place of duty on several occasions.

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

3.  On 20 July 2010, the applicant consulted with legal counsel and voluntarily waived consideration of her case by an administrative separation board, contingent upon her receiving a characterization of service of no less favorable than general, under honorable conditions.  The applicant elected to submit a statement on her 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 an under other than honorable conditions discharge.  

4.  On 3 August 2010, the GCMCA disapproved the request for conditional waiver and referred the case to an administrative separation board.

6.  On 13 August 2010, the applicant was notified to appear before an administrative separation board and advised of his rights.  

7.  On 27 August 2010 and 1 September 2010, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.

8.  On 29 September 2009, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions and immediate reduction to the lowest enlisted grade, PV1/E-1.

9.  The applicant was discharged from the Army on 3 November 2010, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

10.  The applicant’s record of service indicates 25 days of time lost for being AWOL from 26 May 2010, through 2 June 2010 (mode of return in not in the record), and from 28 June 2010 through 14 July 2010, when she was released from military confinement.  



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains the results of a urinalysis coded as IR (Inspection Random), collected on 22 March 2010, which was positive for marijuana.

2.  Article 15, dated 21 April 2010, for wrongfully using marijuana (100223-100322).  The punishment consisted of reduction to the grade of E-1, forfeiture of $723 per month for one month, 45 days of extra duty and restriction, (FG).

3.  Article 15, dated 6 October 2009, for underage drinking (090829).  The punishment consisted of 7 days of extra duty and restriction, and oral reprimand, (CG).

4.  Article 15, dated 30 March 2009, for failing to go to her appointed place of duty at the prescribed time on four occasions (080915, 081023, 081125, and 090209), being disrespectful in language and deportment toward an NCOs on three occasions (080520x2, 090209), disobeying an NCO (090311x2), and failing to obey a lawful general regulation (090311).  The punishment consisted of reduction to the grade of E-2, forfeiture of $366 per month for two months (suspended), 14 days of extra duty and restriction, and oral reprimand, (CG). 

5.  Two negative counseling statements, dated 7 April 2010 and 3 June 2010, for having a positive urinalysis, and being AWOL and insubordinate toward an NCO.
      
6.  DA Form 1574, Report of Proceedings by Investigating Officer/Board of Officers, dated 1 September 2010, and summarized administrative separation board proceedings with findings and recommendations, dated 27 August 2010.

7.  An MP Report, dated 26 June 2010, that indicates the applicant was the subject of an investigation for being arrested by civil authorities for wrongfully possessing marijuana and drug paraphernalia.  The report included a civilian police department report with affidavits.

8.  DA Forms 4187, Personnel Action, indicates the applicant’s duty status changed from PDY to confinement (100628) and confinement to PDY (100715).

9.  DA Forms 4187, Personnel Action, indicates the applicant’s duty status changed from PDY to AWOL (100526) and AWOL to PDY (100603).

10.  Two separate memoranda for the GCMCA, dated 2 August 2010 and 27 September 2010, subject: Separation Under AR 635-200, Chapter 14, Paragraph 14-12c(2), Misconduct-Abuse of Illegal Drugs [the applicant], reported the Staff Judge Advocate’s purpose and discussion, and recommendations regarding the applicant’s request for conditional waiver and subsequently, the final decision/disposition of the applicant’s separation proceedings, respectively.

11.  Summary Court-Martial Report of Result of Trial indicates the applicant was found guilty of disobeying a superior commissioned officer (100526-100603) and was sentenced to 17 days confinement.  The report includes a record of trial; confinement order, dated 28 June 2010; and DD Form 458, Charge Sheet, indicates the applicant charged with disobeying a superior commissioned officer (100526-100603), which was preferred on 8 June 2010 and referred to a summary court-martial on 10 June 2010.

12.  E-mail correspondence, dated 30 June 2010, which contains an MP blotter that indicates the applicant was the subject of investigation for being arrested by a civilian police officer for wrongful possession of marijuana (off-post) and felony possession of drug paraphernalia (off-post).  The blotter also lists her previous offenses.

13.  DA Form 8003, ASAP Enrollment, undated, indicates the applicant was command referred into ASAP for improper use of drugs.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none; however, provided a Standard Form 180, Request Pertaining to Military Records, dated 6 July 2013, which is inapplicable to the applicant’s case under current review.

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.  

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

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge was carefully considered.  However, after examining the applicant’s record of service, her military records, and the issue of conducting a records review of her discharge 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 her 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 abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of her service below that meriting a general, under honorable conditions or an honorable discharge.  The applicant’s record of service was marred by a summary court-martial, three Article 15 actions for 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 provided no justifying reason for her request for an upgrade.

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

6.  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:  Record Review       Date:  19 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)		AR20130013109

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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