IN THE CASE OF:  	Mr. 

      BOARD DATE:  	2 May 2014

      CASE NUMBER:  	AR20130015531
___________________________________________________________________________

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 a biochemical test which was coded RO (Rehabilitation Testing) 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 full relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was proper and equitable and the Board voted not to change it.



      
      
      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, his discharge was improper because he was in the Army from 1995, then he went to the Reserves until 2001 and he was discharged from active duty.  He was a good Soldier and his misconduct was a single incident.  He received certificates of achievement and good records until he was discharged.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 August 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			6 April 2001
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14, paragraph 						14-12c(2), JKK, RE-3
e. Unit of assignment:			317th Maintenance Company, APO AE 09139
f. Current Enlistment Date/Term:	5 November 1999, 3 years
g. Current Enlistment Service:	1 year, 5 months, 2 days 
h. Total Service:			4 years, 10 months, 2 days
i. Lost time:				None
j. Previous Discharges:		USAR (950327-980827)/NA
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	45B10, Small Arms Repairer
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			Germany
p. Combat Service:			None
q. Decorations/Awards:		ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the US Army Reserve on 27 March 1995, for a period of 8 years.  He was 17 years old at the time of entry and a high school student.  His discharge information from the US Army Reserve is not in the file.  He enlisted in the Regular Army on 5 November 1999 for a period of 3 years and he was 21 years old at the time.  He was trained in and awarded military occupational specialty (MOS) 45B10, Small Arms Repairer.  His record does not contain any evidence of acts of valor or meritorious achievements; and he achieved the rank of SPC/E-4.  He was serving in Germany when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 21 March 2001, 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-commission of a serious offense.  Specifically for the following offenses:

     a.  admitting to smoking and possessing marijuana, and

     b.  having a problem with abusing illegal drugs.

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 21 March 2001, the applicant was afforded the opportunity to consult with legal counsel and declined the opportunity to do so, was advised of the impact of the discharge action, and did not submit a statement on his 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 March 2001, 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 6 April 2001, 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 with a Separation Program Designator code (SPD) of JKK and an RE code of 3. 

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.  An Article 15, dated 22 November 2000 for wrongfully using marijuana (001005-001006); and wrongfully possessing some amount of marijuana (001005-001006); the punishment consisted of reduction to E-1, forfeiture of $502 pay x 2 months, and extra duty for 45 days, (FG).

2.  The record contains a positive urinalysis report coded RO (Rehabilitation Testing), dated 3 January 2001 for THC.

3.  The record also contains a CID Report of Investigation, dated 9 February 2001 indicating the applicant was under investigation for wrongfully using marijuana. 

4.  The applicant received a negative counseling statement, dated 2 February 2001 for drinking and using illegal substances.

5.  There are three DA Form 2823 (Sworn Statements), dated 7 October 2000 and 3 January 2001, which gave accounts regarding the use of marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with 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.

DISCUSSION AND RECOMMENDATION:

1.  After a careful review of all the applicant’s 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 3 January 2001, which was coded RO (Rehabilitation Testing) 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 full relief by upgrading the applicant’s characterization to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review         Date:  2 May 2014         Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  None

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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20130015531



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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