IN THE CASE OF:  	Mr. 

      BOARD DATE:  	2 April 2014

      CASE NUMBER:  	AR20130013374
___________________________________________________________________________

Board Determination and Directed Action

1.  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 characterization of service was improper.  

2.  The record shows the government introduced into the discharge packet the results of two biochemical tests which were 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.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was both proper and equitable and the Board voted not to change it.  This action entails a restoration of grade to MSG/E-8.



      
      
      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 an upgrade of his discharge from under other than honorable conditions to honorable and a change to the narrative reason for separation.

2.  The applicant states, in effect, his discharge was inequitable because it was based on an isolated incident during 17 years, 7 months of service with no other adverse action.  He would like to have his rank reinstated.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 July 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			23 March 2007
d. Reason/Authority/SPD/RE Code:	In Lieu of Trial by Court-Martial/AR-635-200/Chapter 						10/KFS/RE-4
e. Unit of assignment:			C Co, Troop Command, Brooke Army Medical Center 						Fort Sam Houston, TX
f. Current Enlistment Date/Term:	14 August 2000, indefinite
g. Current Enlistment Service:	6 years, 6 months, 10 days
h. Total Service:			17 years, 6 months, 1 day
i. Time Lost:				30 days
j. Previous Discharges:		RA (890823-030121)/HD										RA (930122-960110)/HD										RA (960111-980304)/HD										RA (980305-000813)/HD
k. Highest Grade Achieved:		E-8
l. Military Occupational Specialty:	68P10, Radiology Specialist/11H10 Heavy Anti-Armor 					Weapon
m. GT Score:				118
n. Education:				1 year of college
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		ARCOM-2, AAM-8, AGCM-5, NDSM, GWOTSM 						KDSM, NPDR, ASR, OSR, EIB, ASUA
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 23 August 1989, for a period of four years.  He was 17 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 11H10 Heavy Anti Armor Weapon.  He subsequently was trained in and was awarded military occupational specialty (MOS) 68P10, Radiology Specialist.  His last reenlistment on 14 August 2000 was for an indefinite period and he was 28 years old at the time.  His record also shows that he served in Korea; he earned several awards including an ARCOM-2, AAM-8, AGCM-5, and an EIB.  He was serving at Fort Sam Houston, TX when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      28 December 2006, the applicant was charged with the following offenses:

     a.  wrongfully using cocaine x 4 (031101060831), (060915-060918), (061009-061013), and (061201-061204)

     b.  wrongfully possessing some amount of cocaine (061018)

     c.  unlawfully striking and/or pushing Ms. C.V. with his person on divers occasions between (031101-060831)

2.  On 19 March 2007, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser-included offense.  The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant did not submit a statement on his own behalf. The applicant’s chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.

3.  On 21 March 2007, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 23 March 2007, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and a RE code of 4.

5.  The applicant’s record of service indicates 30 days of time lost for being AWOL from              19 February 2007 until 18 March 2007, mode of return unknown.  Also, the evidence of record indicates the applicant was ordered to pre-trial confinement on 19 March 2007

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The applicant received seven successful NCOERs covering the periods of July 2000 through July 2006.  He also received a marginal NCOER covering the period August 2006 through March 2007.

2.  The applicant received two DA Forms 1059 (Service School Academic Evaluation Report), dated 29 May 2003 and 17 June 2003, the applicant received achieved course standard ratings.

3.  The record of evidence contains three DA Forms 4187 (Personnel Action), dated between         21 February 2007 and 19 March 2007, which indicated the present for duty, AWOL and the pre-trial confinement dates.

4.  He received a certificate of achievement, dated 31 December 2001.

5.  The record also contains four positive urinalysis reports, one coded IR (Inspection Random), dated 11 January 2007 for cocaine, one coded CO (Competence for Duty/ Command Direct/Fitness for Duty), dated 18 September 2006 for cocaine, two coded RO (Rehabilitation Testing), dated 4 December 2006 and 13 October 2006 both for cocaine.

6.  A Checklist for pre-trial confinement/confinement order, dated 19 March 2007 for being AWOL, illegal drug abuse and assault.

7.  Three CID Reports of Investigation, dated 23 January 2007, indicated the applicant was under investigation for unauthorized use of a motor vehicle and 1 November 2006 and             5 October 2006 both for wrongfully using cocaine.

8.  A Georgetown Police incident report with two supplemental reports dated 8 November 2006, 11 November 2006 and 1 January 2007 in reference to the unauthorized use of a motor vehicle.

9.  A DA Forms 2823 (Sworn Statement), dated 19 September 2006, regarding the applicant’s drug abuse.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY:

The applicant did not provide any with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

2.  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.

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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

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

DISCUSSION AND RECOMMENDATION:

1.  After a careful review of the applicant’s record of service, his military records, and the issues 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 4 December 2006 and 13 October 2006, which were coded RO (Rehabilitation) and 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.  The records show the proper discharge and separation procedures were not followed in this case.  

4.  Therefore, the characterization of service being improper, recommend the Board grant partial relief by upgrading the applicant’s characterization of service to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.  This action entails a restoration of grade to MSG/E-8.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  2 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)		AR20130013374



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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