IN THE CASE OF:	Mr. 

      BOARD DATE:	30 May 2014

      CASE NUMBER:	AR20130014989
___________________________________________________________________________

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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, his discharge was inequitable because it was based on a one time isolated incident.  There was a bottle of steroids in his locker, but others in his unit were also caught with substances without being punished.  The steroids were provided by his NCO, a sergeant, and he was never punished.  Others were just moved to other units.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	14 August 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	20 July 2011
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	HHB, 5th Bn, 82nd FA, 4th BCT, 1CD,	Ft Hood, TX 
	f.	Current Enlistment Date/Term:	29 July 2009, 4 years, 20 weeks
	g.	Current Enlistment Service:	1 year, 11 months, 22 days
	h.	Total Service:	1 year, 11 months, 22 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	13D10, Field Artillery Automation Specialist
	m.	GT Score:	90
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (100915-110702)
	q.	Decorations/Awards:	NDSM; ICM-2CS; GWOTSM; ASR; OSR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	No
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 29 July 2009, for a period of 4 years and 20 weeks.  He was 19 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 13D10, Field Artillery Automation Specialist.  He served in Iraq.  His record documents no other acts of valor or significant achievement.  He completed 1 year, 11 months, and 22 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 16 June 2011, 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 offense, specifically for the following events:  

	a.	On 19 February 2011, after PVT W experienced an adverse reaction resulting from smoking spice, he identified the applicant as the person who gave him spice.
	b.	On 19 February 2011, after having the applicant’s Article 31 rights read, he provided a sworn statement to Special Agent (SA) H, denying ever smoking spice.
	c.	On 22 February 2011, SPC B identified the applicant as a spice user and said the applicant offered to give him spice. 
	d.	On 23 March 2011, the applicant again waived his Article 31 rights and denied possessing, using, or smoking spice. 
	e.	On 1 April 2011, SPC V told the CID that the applicant tried to solicit him into buying steroids (110328-110329). 
	d.	On 11 April 2011, the CID conducted a search of the applicant’s Containerized Housing Unit (CHU).  During the search of his CHU, CID found approximately 1,000 steroid pills. 
	e.	His actions resulted in a FG Article 15 for violations of Article 92, UCMJ, for disobeying a general order; Article 107, UCMJ, for making a false official statement; and Article 112, UCMJ, for using and intent to distribute a controlled substance.

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 25 June 2011, 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 26 June 2011, 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 20 July 2011, 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 are no counseling statements or a completed UCMJ action in the record.  However, the applicant was discharged as a PVT/E-1; the action that reduced him in rank is not available in his record.  His ERB, dated 13 July 2011, indicates he was reduced to E-1 on 28 May 2011.

2.  Numerous sworn statements as part of a CID report further indicates the applicant was the subject of an investigation for wrongful possession, use, and distribution of spice, and failure to obey a lawful order or regulation.  

3.  An incomplete Article 15 with a list of offenses.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application with no further evidence.

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.



ANALYST’S 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 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.  

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 the incident that caused his discharge was the only one in his entire Army career.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

5.  The applicant contends that other Soldiers caught with similar offenses were not punished, discharged, or allowed to stay in the Army.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

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

7.  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:  Personal Appearance     Date:  30 May 2014      Location:  Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers:  No 

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)		AR20130014989



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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