IN THE CASE OF:	Mr. 

      BOARD DATE:	4 April 2014

      CASE NUMBER:	AR20130013291
___________________________________________________________________________

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 general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, he believes his discharge was unjust because he was punished multiple times for the same offense.  He received a FG Article punishment of 45 days extra duty, reduced in rank, and two months forfeiture of pay, despite having to support a child and a wife.  He successfully completed ASAP (Army Substance Abuse Program), and was recommended for an honorable discharge by his company commander.  He was an outstanding Soldier who served honorably and deserves an honorable discharge. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	19 October 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	G Co, 26th BSB, 2nd BCT, 3rd ID, Fort Stewart, GA
	f.	Current Enlistment Date/Term:	31 August 2009, 3 years, 23 weeks
	g.	Current Enlistment Service:	3 years, 1 month, 19 days
	h.	Total Service:	3 years, 1 month, 19 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	92G10, Food Service Operations Specialist
	m.	GT Score:	92
	n.	Education:	HS Graduate
	o.	Overseas Service:	Korea
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; KDSM; 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 31 August 2009, for a period of 3 years and 23 weeks.  He was 18 years old at the time of entry and a high school graduate.  He served in Korea.  He was trained in and awarded military occupational specialty (MOS) 92G10, Food Service Operations Specialist.  His record documents no acts of valor or significant achievement.  He completed 3 years, 1 month, 19 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 18 May 2012, 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 commission of a serious offense, specifically for receiving an Article 15 the following offenses:  

a. wrongfully using marijuana (120223-120322);
b. breaking an arrest when an authorized person placed him under arrest (120209); and
c. wrongfully leaving the scene of an accident (120209).

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

3.  On 23 May 2012, 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 27 September 2012, 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 October 2012, with a characterization of service of general, under 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. 

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: IR, Inspection – Random, collected on 22 March 2012, for marijuana.

2.  Article 15, dated 7 May 2012, for wrongfully using marijuana (120223-120322).  The punishment consisted of (punishment illegible up to this point) 45 days of extra duty and restriction, (FG).  Note that the punishment most likely reduced the applicant to PV1/(E-1) because he was discharged at the grade of PV1/E-1).

3.  Article 15, dated 5 March 2012, for breaking his arrest (120209) and wrongfully leaving the scene of an accident (120209).  The punishment consisted of a reduction to the grade of E-3, and forfeiture of pay (amount unspecified) (both were suspended), (CG).

4.  Two negative counseling statements, dated 10 February 2012 and 20 April 2012, for having a positive urinalysis results; fleeing a scene of an accident; resisting arrest and escaping; and being insubordinate towards an NCO.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a letter of support, dated 8 May 2013, rendered by SSG W.

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 document and 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 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 his service below that meriting an honorable discharge.  The applicant’s record of service was marred by two Article 15 actions for 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 contends he was punished multiple times for the same offense.  Perhaps he refers to the punishment by the FG Article 15, and again by the discharge he received.  However, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature, while the Article 15 imposed a punitive punishment under the UCMJ, and his separation was an involuntary administrative discharge pursuant to paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse).

5.  The third party statement provided with the application speaks highly of the applicant’s performance.  However, the persons providing the character reference statement was not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, the statement does not provide any evidence sufficiently compelling to overcome the presumption of government regularity or the characterization of his discharge.

6.  The applicant contends that he had good service which included successfully completing ASAP, being an outstanding Soldier who served honorably, and was recommended for an honorable discharge by his company commander.  The applicant’s service accomplishments and the quality of his service prior to the incidents 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 serious incidents of misconduct or by the negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

7.  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.  Accordingly, 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:  4 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)		AR20130013291

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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