IN THE CASE OF:  	Mr. 

      BOARD DATE:  	22 January 2014

      CASE NUMBER:  	AR20130017775
___________________________________________________________________________

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 discharge from under other than honorable conditions to honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to reenlist.  He contends at the time of discharge he was very young.  He is now 33 years old, more mature, and far more responsible.  His goal is to reenlist into security/law enforcement in the military.  He regrets the bad decisions he made in the past and realizes he was responsible for his decision.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		27 September 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			7 August 2001
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14, paragraph
      14-12c(2), JKK, RE-3
e. Unit of assignment:			B Btry, 3rd Bn, 321st FA Rgt, Fort Bragg, NC
f. Current Enlistment Date/Term:	12 January 2000, 3 years
g. Current Enlistment Service:	1 year, 6 months, 26 days
h. Total Service:			1 year, 6 months, 26 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	13B10, Cannon Crewmember
m. GT Score:				88
n. Education:				HS Graduate
o. Overseas Service:			None
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 enlisted in the Regular Army on 12 January 2000, for a period of 3 years.  He was 19 years old at the time of entry and a high school graduate.  He was serving at Fort Bragg, NC when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 14 May 2001, 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 misconduct-abuse of illegal drugs for the wrongful use of marijuana, larceny, disrespecting a noncommissioned officer and FTR.

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 17 July 2001, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his own behalf.  The applicant waived consideration of his case by an administrative separation board.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.

4.  On 18 July 2001, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant was discharged from the Army on 7 August 2001, 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, 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.  There is a positive urinalysis report contained in the record coded; US (Unit Sweep),           17 July 2000, THC.

2.  A General Officer Memorandum of Reprimand, dated 1 August 2000, for the illegal use of marijuana on 17 July 2000. 

3.  Article 15, imposed on 10 August 2000, for the wrongful use of marijuana between (000618 and 000717).  The punishment consisted of reduction to E-1, forfeiture of $502.00 pay per month for two months, extra duty, and restriction for 45 days (FG).  

4.  Article 15, imposed on 15 March 2001, for stealing another individual's property of a value of less than $100.00 (010128), unlawfully enter the billets room of another individual (010128), and attempting to obtain services under false pretenses (010227).  The punishment consisted of forfeiture of $243.00 pay per month for one month (suspended) and extra duty and restriction for 14 days (CG).

5.  Several negative counseling statements dated between 5 January 2000 and 3 May 2001, for failure to report, overall monthly performance, wrongful use of marijuana, PT test failure, lost of military ID, missing TA-50 gear, disrespect to a noncommissioned officer, failure to return movies and pay debts, failure to follow instruction, unsatisfactory behavior, burglary, larceny of private property, defraud, false pretence, impersonation of someone else, and pending separation action, 

6.  A Mental Health Evaluation memorandum, dated 2 March 2001, which indicates the applicant was diagnosed with occupational problems.  However, he had the mental capacity to participate in the proceedings and was mentally responsible/able to distinguish between right and wrong.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application and a self-authored statement.

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.

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.

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 3 at the time of discharge.

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 two Articles 15, for multiple violations of the Uniform Code of Military Justice and several 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 also requests that his narrative reason for discharge be changed.  However, 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.  

5.  The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to reenlist.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table at the time of the applicant's discharge; the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

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:  Records Review     Date:  22 January 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  2	No Change:  3
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


ADRB Case Report and Directive (cont)		AR20130017775



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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