IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 May 2014

      CASE NUMBER:  	AR20130014713
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, and considering the examiner’s 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 discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to attend school.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		12 August 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			24 November 2009
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			L Trp, 3rd Bn, 3rd ACR, Fort Hood, TX
f. Current Enlistment Date/Term:	31 May 2006, 3 years and 25 weeks
g. Current Enlistment Service:	3 years, 5 months, 24 days
h. Total Service:			3 years, 5 months, 24 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	91M10, Bradley Fighting System Maintainer
m. GT Score:				89
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (071105-090118)
q. Decorations/Awards:		ARCOM, ICM-w/CS, AGCM, NDSM, 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 May 2006, for a period of 3 years and         25 weeks.  He was 24 years old at the time of entry and a high school graduate.  His record indicates he served a period of combat in Iraq; achieved the rank of SPC/E-4; and earned several awards to include the ARCOM.  He completed 3 years, 5 months, and 24 days of total active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 5 October 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense) for testing positive on a urinalysis for marijuana (090709).

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

3.  On 6 October 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action and indicated his intention to submit a statement on his own behalf which was not found in the record.  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 18 November 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provision of Chapter 14, paragraph 14-12c, AR 635-200 for the commission of a serious offense.

5.  The applicant was discharged from the Army on 24 November 2009, 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), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

6.  The Transition Center (TC) appropriately selected the SPD code, reentry code and reason for the discharge to execute the commander's intent which in this case was to discharge the applicant for wrongfully using an illegal drug.  Army Regulation 635-5-1 provides the authority for Transition Centers (TC) throughout the Army to execute the commanders’ intent and in this case the TC selected the appropriate reentry code, the SPD Code that identified the type of separation and the correct paragraph from AR 635-200 that corresponded with the reason for the applicant’s separation as described in the discharge packet.

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 is a positive urinalysis report contained in the record coded; IU (Inspection Unit),       9 July 2009, marijuana.

2.  Article 15, imposed on 5 August 2009, for wrongfully using marijuana between (090610 and 090709) and failure to go to his appointed place of duty (090701).  The punishment consisted of reduction to the grade of E-3, forfeiture of $929.00 per month for two months, and extra duty and restriction for 45 days (FG).  

3.  Two negative counseling statements dated 1 July 2009 and 21 July 2009, for not being at his appointed place of duty and testing positive for THC on a urinalysis test.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and a copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were provided 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.  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, the documents and the 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 an Article 15 for the wrongful use of marijuana and failing to go to his appointed place of duty and two 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 expressed his desire for an upgrade of his discharge for the purpose of going to school.  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.  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:  7 May 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)		AR20130014713



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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