IN THE CASE OF:  	Mr. 

      BOARD DATE:  	14 May 2014

      CASE NUMBER:  	AR20130015686
___________________________________________________________________________

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 examiner’s Discussion and Recommendation which follows, the Board determined the characterization was improper.  

2.  The record shows the government introduced into the discharge packet the results of bio-chemical tests which were coded CO and RO, and 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 partial 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 under other than honorable conditions discharge to general, under honorable conditions, a change to the narrative reason for discharge and change to his reentry code.

2.  The applicant states, in effect, that his separation date, characterization of service, narrative reason for discharge and reentry code are incorrect.  He contends he would like to use his medical benefits and Montgomery GI Bill.  He states he completed four years and one month of military service.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			21 August 2013
b. Discharge Received:			Under Other Than Honorable Conditions 
c. Date of Discharge:				19 May 2011
d. Reason/Authority/SPD/RE Code:		Misconduct (Drug Abuse), AR 635-200
Chapter 14-12c(2), JKK, RE-4
e. Unit of assignment:				364th Quartermaster Company, Fort Bragg
NC
f. Current Enlistment Date/Term:		21 May 2007/4 years
g. Current Enlistment Service:		3 years, 11 months, 29 days
h. Total Service:				5 years, 10 months, 21 days
i. Time Lost:					None
j. Previous Discharges:			DEP (020128-020321)/NA
RA (020321-031218)/GD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		92A10, Automated Logistics Specialist
m. GT Score:					95
n. Education:					HS Graduate
o. Overseas Service:				SWA, Kuwait
p. Combat Service:				Iraq (080910-090909)
Kuwait (020501-030501)
q. Decorations/Awards:			ARCOM, AGCM, NDSM, GWOTEM 
GWOTSM, ICM-2CS, ASR, OSR-2
r. Administrative Separation Board: 		Waived
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No



SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 21 March 2002, for a period of 4 years.  He was separated from the military with a general, under honorable conditions discharge.  On 21 May 2007, the applicant reentered the Regular Army for a period of 4 years.  He was 25 years old at the time of his reentry and a high school graduate.  He served in Iraq and Kuwait and earned an ARCOM.  He completed a total of 5 years, 10 months, 21 days of creditable military service.  When his discharge proceedings were initiated, he was serving at Fort Bragg, NC.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 28 March 2011, 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 the following offenses:

     a.  willfully disobeyed an order from a warrant officer,
 
     b.  failed to report on 101112, 101120, 101121, and 101122,

     c.  gave a false official statement,

     d.  disrespected an NCO on occasion 101116, 

     e.  disobeyed an NCO on three occasions (101019, 101021, 101022), and

     f.  wrongfully used marijuana between 101219 and 110119.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 
 
3.  On 31 March 2011, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board.  He did not provide a contingency regarding his characterization of service at discharge.  The applicant elected not to submit a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The battalion commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge and the brigade commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  There is no evidence in the record that the applicant was ever notified to appear before an administrative separation board.  

5.  On 15 April 2011, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank.
6.  The applicant was discharged from the Army on 19 May 2011, with a characterization of service of under other than 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. 

7.  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 three positive urinalysis reports contained in the record:

           IU, Inspection Unit, 19 January 2011, marijuana 
           RO, Rehabilitation Testing, 24 February 2011, marijuana
           RO, Rehabilitation Testing, 21 September 2010, marijuana

2.  A computer generated print out dated between 5 November 2002 and 28 January 2011, reflects a history of the applicant’s urinalysis tests.  The report reflects four negative inspection random (IR) tests, 13 inspection unit (IU) (sweep) tests with four positive results for marijuana, one positive command directed (CO) test, and one positive rehabilitation test (RO).  

3.  A memorandum from Mr. T, a licensed clinical psychologist, Womack Army Medical Center, dated 25 January 2011, reflects a summary of the applicant’s rehabilitation efforts.  Mr. T stated the applicant self-referred to the Army Substance Abuse Program (ASAP) on 
20 September 2010, for use of cannabis.

4.  Article 15, dated 26 July 2010, for failing to go at the time prescribed to his appointed place of duty x 4 (100622, 100625, 100628, 100701).  The punishment consisted of reduction to the grade of E-3, forfeiture of $448 per month for one month (suspended), and 14 days of extra duty (CG). 

5.  Article 15, dated 19 January 2011, for wrongful use of marijuana.  The punishment consisted of reduction to the grade of E-1, and 45 days extra duty and restriction (FG).
      
6.  Multiple negative counseling statements dated between 13 October 2010, and 
16 November 2010, for disobeying a lawful order x 3 (101013, 101022x2), making a false statement to an NCO, missing formation, missing movement, failing to conduct mandatory training, failing to provide appointment slips, failing to follow instructions x 2 (101020, 101022), failing to report, malingering, disrespect to a NCO, insubordinate conduct towards a senior NCO, lack of motivation and performance, no mileage pass, and pending separation in accordance with AR 635-200.
      
7.  MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 18 November 2010, indicates the applicant had a clear and normal thought process and was mentally responsible.  He was diagnosed with alcohol and cannabis abuse.  

8.  A memorandum from CPT C, dated 24 May 2011, requesting the applicant’s expired term of service (ETS) be extended from 20 May 2011 until 20 June 2011, to await the completion of an investigation and out-processing.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 21 August 2013, a clothing record transaction print-out, dated 21 June 2011, a memorandum from LTC W, dated 4 April 2011, recommending the applicant for a general, under honorable conditions discharge, a DD Form 214, and a quote from Mr. D. 

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).

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

ANALYST’S DISCUSSION AND RECOMMENDATION:

1.  After a careful review of all the applicant’s military records, the issue and documents 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 two biochemical tests conducted on 21 September 2010, and 24 February 2011, which was coded RO (Rehabilitation) and that it was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  Further, the government included a history of the applicant’s urinalysis tests that included a command directed (CO) urinalysis test given on 31 October 2003, for which he tested positive for marijuana.  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.  On 19 January 2011, the applicant accepted non-judicial punishment for wrongfully using marijuana on 22 August 2010, and 21 September 2010. His punishment consisted of reduction to the grade of E-1, and 45 days extra duty and restriction.

4.  If the test basis for the urinalysis was RO, as stated on the collection sheet, then the Article 15 was improper.  There is no indication in the chapter paperwork that the command recognized that a urinalysis for “rehabilitation testing” could not be used as the basis for the Article 15.  Further, there is no indication the command believed the urinalysis was improperly coded “RO.”  

5.  Therefore, it appears the urinalysis was properly coded RO, the Article 15 was improper based on the limited use evidence, and the discharge was improperly characterized given the introduction of the limited use evidence in the chapter paperwork.  However, the question whether the urinalysis was properly coded is a question of fact for the Army Discharge Review Board to determine given the contrary conclusions that could be drawn by the command treating the urinalysis as though it was not limited use evidence.  The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded.  

6.  The applicant contends his narrative reason for discharge and reentry code is incorrect.  However, the Transition Center 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 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.  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.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.  An RE code of 4 cannot be waived.

8.  The applicant contends that an upgrade of his discharge will allow him to us his medical benefits through the Veterans Administration.  However, the Board does not grant relief for the purpose of accessing veterans benefits.

9.  The records show the proper discharge and separation procedures were not followed in this case.  

10.  Therefore, the characterization of service being improper, recommend the Board grant partial 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.   

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 examiner’s Discussion and Recommendation which follows, the Board determined the characterization was improper.  

2.  The record shows the government introduced into the discharge packet the results of bio-chemical tests which were coded CO and RO, and 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 partial 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.










SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  14 May 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)		AR20130015686



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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