IN THE CASE OF:  	

      BOARD DATE:  	8 December 2014

      CASE NUMBER:  	AR20140017202
___________________________________________________________________________

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 Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s overall length and quality of his service, to include his combat service and his testimony, and as a result, it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable, and 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 and a change to his narrative reason for discharge.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to further his education and employment opportunities.  He contends he fully understands his wrong doings while in the military and feels he has been appropriately punished.  He is making every attempt to better himself and has paid for his mistakes with an Article 15 and denial of a medical board, resulting in his discharge.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		29 September 2014
b. Discharge received:			General, Under Honorable Conditions
c. Date of Discharge:			23 January 2013
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14						Paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			C Co, 2nd Bn, 1st BSTB, 2nd HBCT, 1st IN Div, Fort 						Riley, KS
f. Current Enlistment Date/Term:	4 December 2008, 5 years 
g. Current Enlistment Service:	4 years, 1 month, 20 days
h. Total Service:			6 years, 4 month, 11 days
i. Time Lost:				None
j. Previous Discharges:		RA-060913-081203/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	12B10, Combat Engineer
m. GT Score:				106
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia 
p. Combat Service:			Iraq (080527-090526)
q. Decorations/Awards:		ARCOM, AGCM, ICM-w/CS, NDSM GWOTSM, ASR 						OSR, CAB 
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 13 September 2006, for a period of 3 years and         19 weeks.  On 4 December 2008, he reenlisted for a period of 5 years.  He was 20 years old at the time of reenlistment and a high school graduate.  His record indicates he served a period of combat in Iraq; earned several awards including the ARCOM and the AGCM, and achieved the rank of SPC/E-4.  He was serving at Fort Riley, KS when separation action was initiated.  He completed 6 years, 4 months, and 11 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 17 April 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, section III, paragraph 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs for the wrongful distribution of two pills of Klonopin.

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 April 2012, 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 commanders reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 17 December 2012, the separation authority in accordance with AR 635-200 paragraph 1-33b(2), reviewed the administrative separation action and the medical evaluation board results pertaining to the applicant and find that his medical condition was not the direct or substantial cause of the misconduct and there were no other circumstances that warrant continued PEB processing.  

5.  Therefore, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

6.  The applicant was discharged from the Army on 23 January 2013, 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), with a Separation Program Designator code (SPD) of JKK, and a RE code of 4. 

7.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Trial Counsel's memorandum, dated 20 November 2012, indicates the applicant received an Article 15, 10 February 2012, for the wrongful distribution of a controlled substance, Klonopin.  The punishment consisted of reduction to E-1, forfeiture of $745.00 per month for two months, extra duty for 45 days, and restriction for 45 days (suspended) (FG).

2.  A memorandum, dated 7 December 2012, concerning the discharge of the applicant under Chapter 14-12c, or for medical reasons.

3.  Several counseling statements dated between 1 February 2012 and 10 December 2012, for performance/professional growth for the months of January, February, and April through November 2012, and his expectations as a member of his section.

4.  Report of Mental Status Evaluation, dated 12 January 2012, indicating the applicant was diagnosed with chronic post-traumatic stress disorder per AHLTA.  The evaluation indicates the applicant had been receiving treatment for 2 1/2 weeks and that he was positive for mild traumatic brain injury as a result of tripping and hitting his head on the ground, not injuries, not dizzy. 

5.  Medical Evaluation Board Proceedings, dated 28 August 2012, which referred the applicant's case to a Physical Evaluation Board (PEB).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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.

DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of the characterization of his discharge and a change to his narrative reason for discharge was carefully considered.  However, after examining the applicant’s record of service, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge and a change to his narrative reason for 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 his wrongful use of 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 wrongful distribution of two pills of Klonopin.

3.  The applicant also requested 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.  

4.  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.  

5.  The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to further his education and employment opportunities.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
6.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.

7.  Therefore, the reason for discharge and the characterization being both proper and equitable, the analyst recommends the Board deny relief.

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 Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s overall length and quality of his service to include his combat service and his testimony, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance    Date:  8 December 2014   Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: None

Witnesses/Observers:  Yes 

Board Vote:
Character Change:   3	No Change:  2
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:		No Change
Change RE Code to:			No Change
Grade Restoration to:			NA
Other:						NA



Secretarial Reviewing Authority (SRA):

After reviewing your case, 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 adopted the Board President’s recommendation to overturn the Board’s decision. You failed to provide sufficient documentation to support your contentions, and found your testimony not to be creditable to overcome the presumption of government regularity.

































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)		AR20140017202



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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