IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 April 2014

      CASE NUMBER:  	AR20130014157
___________________________________________________________________________

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 an upgrade of his general, under honorable conditions discharge to honorable and a change to the narrative reason.

2.  The applicant states, in effect, he was separated for a positive urinalysis caused by ingesting coca tea the morning of the urinalysis test.  He contends he was able to prove his case before the battalion commander but was never allowed to speak with the brigade commander.  He states his first sergeant (1SG) included a drunk on duty allegation for which he blew a .00 and an administrative action from two years prior to his discharge.  He states his brigade commander was not given the option to separate him honorably.  He is requesting an upgrade of his discharge so he can attend college and start his life over.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			1 August 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				30 March 2012
d. Reason/Authority/SPD/RE Code:		Misconduct (Drug Abuse), AR 635-200,
Chapter 14-12c(2), JKK, RE-4
e. Unit of assignment:				HHC, 1-1 Armor, Fort Bliss, TX
f. Current Enlistment Date/Term:		11 September 2008/6 years
g. Current Enlistment Service:		3 years, 6 months, 20 days
h. Total Service:				3 years, 6 months, 20 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		35F10, Intelligence Analyst
m. GT Score:					139
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (091113-101110)
q. Decorations/Awards:			ICM-2CS, ARCOM, AAM, MUC, NDSM,
GWOTSM, ASR, OSR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			NIF
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 11 September 2008, for a period of 6 years.  He was 19 years old at the time of entry and a high school graduate.  He served in Iraq and earned an ARCOM.  He completed 3 years, 6 months, and 20 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Bliss, Texas.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The applicant provided documents that reflect on an unknown date, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c(2), for misconduct (drug abuse).  Specifically for testing positive for the usage of coca leaves, being disrespectful towards an NCO, and failing to go to his appointed place of duty on divers occasions.

3.  Based on the above misconduct, the unit commander recommended an honorable discharge.

4.  On 8 March 2012, the applicant submitted a statement in his own behalf to the separation authority.  The applicant stated, in effect, he had served dutifully and faithfully as an intelligence analyst for three years.  He had deployed to Iraq and had done his best to contribute to the Nation’s fight in the war on terror.  He contended that his wife ordered some Delisse Coca Tea from Amazon.com and it was marketed as a caffeine substitute and a way to lose weight.  He consumed the tea on a few occasions including the morning of the urinalysis test.  The tea caused a positive result for cocaine as it was made from coca leaves.  He states he pled guilty to the charges under Article 15 proceedings, however, his battalion commander determined he had no intention of wrongdoing.  On the day after the Article 15 hearing, he was told he smelled of alcohol and was escorted to the Military Police station for a breathalyzer test.  His results registered as .00 for alcohol proving his innocence of the allegation of being drunk on duty.  He contends this was included in his separation packet along with an Article 15 for disrespect of an NCO in March 2010.  He contended he had matured and the high level of stress he was under had no bearing on his character as a Soldier.  

5.  In addition to his rebuttal statement, the applicant provided a letter of support from CW2 Z, dated 8 March 2012.  CW2 Z stated, in effect, he was the applicant’s supervisor from January 2011 through December 2011.  He stated the applicant was in the top ten intelligence analyst he has supervised and always distinguished himself in every assigned task.  He contended that although the applicant received non-judicial punishment for consuming a wrongful substance, he was convinced he did not knowingly do so.  

6.  The unit commander subsequently recommended the applicant be retained in the military.  His battalion commander, after review of the separation packet, concurred with the unit commander’s recommendation.


7.  On 14 March 2012, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

8.  The applicant was separated on 30 March 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. 

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

EVIDENCE SUBMITTED BY THE APPLICANT:

1.  The applicant provided an online application, dated 18 July 2013, with all listed enclosures, and a DD Form 214.

2.  Article 15, dated 2 February 2012, for wrongful use of coca leaves, a schedule II controlled substance.  The punishment consisted of reduction to the grade of E-2 (suspended), to be automatically remitted if not vacated before 2 August 2012, and a written reprimand.

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his 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.

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).

DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of the characterization for his discharge and 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’s record is void of complete facts and circumstances concerning the events which led to his discharge from the Army.  However, the applicant provided a partial copy of his separation packet and the record contains a properly constituted DD Form 214, which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the presumption of government regularity prevails in the discharge process.  
 
3.  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 15s (one of which the applicant provided with his application and one he admits he received for disrespecting an NCO in March 2010).

4.  The applicant contends that an upgrade of the characterization of his discharge and a change in the reason would allow for educational benefits through the use of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

5.   Further, 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.  

6.  Therefore, the reason for discharge and the characterization being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  11 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130014157



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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