IN THE CASE OF:  

      BOARD DATE:  	22 October 2014

      CASE NUMBER:  	AR20140013189
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the Examiner’s Discussion and Recommendation that follows, the Board determined the discharge is now inequitable.  The Board found the length and quality of the applicant's service, to include his combat service; the circumstances surrounding his discharge, and his testimony, mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, and a change to the narrative reason for separation to Secretarial Authority.  This action entails a change to the reentry eligibility (RE) code to 3.  



      
      
      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 general, under honorable conditions discharge to honorable and a change to his narrative reason for separation.

2.  The applicant states, in effect, his discharge is inequitable because it was based on one isolated event in five years and nine months of active duty service.  The applicant contends he was not afforded the opportunity for rehabilitation. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			18 July 2014
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				29 August 2011
d. Reason/Authority/SPD/RE Code:		Misconduct (Drug Abuse), AR 635-200
Chapter 14-12c(2), JKK, RE-4
e. Unit of assignment:				Headquarters and Headquarters Company 
1st Battalion, 506th Infantry Regiment 
4th Brigade Combat Team, 101st Airborne
Division (Air Assault), Fort Campbell, KY
f. Current Enlistment Date/Term:		25 November 2008/4 years
g. Current Enlistment Service:		1 year, 9 months, 5 days
h. Total Service:				6 years, 11 months, 14 days
i. Time Lost:					None
j. Previous Discharges:			USAR, 040915-070917, HD
RA, 070918-081124, HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					101
n. Education:					HS Graduate
o. Overseas Service:				SWA, Germany
p. Combat Service:				Afghanistan (100821-110507)
q. Decorations/Awards:			ACM-2, ARCOM, AAM-3, AGCM, NDSM 
							GWOTSM, NPDR, ASR, OSR-2, KCM-BSS 
							NATO, CIB
r. Administrative Separation Board: 		Yes
s. Performance Ratings:			N/A
t. Counseling Statements:			Yes
u. Prior Board Review:				Yes


SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 18 September 2007, for 3 years.  He reenlisted in the Regular Army on 25 November 2008, for a period of 4 years.  He was 22 years old at the time and a high school graduate.  He served in Kosovo and Afghanistan and he completed 
6 years, 11 months, and 14 days of active duty and reserve service.  When his discharge proceedings were initiated, he was serving at FOB Sharana, Afghanistan.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 12 March 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, abuse of illegal drugs; specifically, for testing positive for use of cocaine on 7 July 2010.

2.  Based on the above misconduct, the unit commander recommended the applicant be retained in the Army and advised the applicant of his rights. 
 
3.  On 14 March 2011, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his retention in the service.  The applicant submitted a statement on his own behalf.

4.  On 29 March 2011, the unit commander recommended retention in the Army.  The intermediate commander reviewed the proposed action and recommended the applicant be retained in the Army.  

5.  On 29 March 2011, the applicant was notified to appear before an administrative separation board and advised of his rights.  

6.  On 15 April 2011, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions (suspended for nine months).  Furthermore, if the applicant’s performance during the probationary period is satisfactory, the board recommended that the separation be dismissed.  
  
7.  On 27 April 2011, the separation authority approved the recommendation of the administrative separation board (except for the suspension of the discharge), waived the rehabilitative transfer requirement, and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

8.  The applicant was discharged from the Army on 29 August 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 a RE code of 4. 

9.  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 one positive urinalysis report contained in the record:

	IR, Inspection Random, 7 October 2010, cocaine 

2.  Article 15, dated 22 October 2010, wrongfully use cocaine, a schedule II controlled substance between 3 July 2010 and 7 July 2010.  The punishment consisted of a reduction to the grade of E-1, forfeiture of $723.00 per month for two months (suspended).  Suspension is to be automatically remitted if not vacated before 20 April 2011. 

3.  Three negative counseling statements dated between 27 July 2010 and 31 May 2011, for indebtedness, testing positive on a unit urinalysis, and initiation of separation processing.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self authored statement, dated 14 July 2014, with all enclosures that include his reserve and active duty documents, letters of recommendation, retention board proceedings, and documents related to his discharge.  The applicant outlines his Army service, his post-service accomplishments, and his desire for a change in character of service.

POST-SERVICE ACTIVITY: 

The applicant has attained personal goals by accomplishing the following:

  -  completed commercial diver’s school at the Diver’s Academy in Erial, New Jersey.
 
  -  secured a position with Neal Structural Repair in Montana.
 
  -  promoted to Dive Operations Supervisor, with less than one year of professional dive experience.
 
  -  opened personal business, “Fit Force,” a fitness and mixed martial arts studio.

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 a SPD Code of "JKK" will be assigned a RE Code of 4.

EXAMINER’S DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for 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 violation of the Uniform Code of Military Justice and three 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 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 he was not afforded the opportunity for a rehabilitation transfer; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

6.  The Army Discharge Review Board is authorized to consider post-service factors in the characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

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

8.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. 

SECRETARIAL REVIEWING AUTHORITY (SRA):

After reviewing your case, the Army Discharge Review Board dissented from the analyst’s recommendation to deny relief. Further, the President of the Board dissented from the majority vote to grant relief as detailed in the enclosed record of proceeding and referred your case to the Deputy Assistant Secretary of the Army (Review Boards) for a final decision.  Upon review, the Secretarial Reviewing Authority (SRA) adopted the Board’s recommendation, in part, to upgrade the characterization to Honorable.  However, the SRA dissented from the Board’s recommendation to change the narrative reason to Secretarial Authority; in that you failed to provide sufficient documentation, or independent evidence, to support your contentions to overcome the presumption of government regularity.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance    Date:  22 October 2014    Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel:  None

Witnesses/Observers:  None

Board Vote:
Character Change:  4	No Change:  1
Reason Change:	3	No Change:  2
(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:		No Change
Change RE Code to:			3
Grade Restoration to:			NA
Other:						
















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)		AR20140013189



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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