AR20140000477

IN THE CASE OF: Mr.

BOARD DATE: 12 November 2014

CASE NUMBER: AR20140000477
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicants record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board noted that the government introduced the results of a command directed urinalysis into the discharge process. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. Accordingly, the Board voted to change the characterization of service to honorable. However, the Board found the reason for discharge was fully supported by the record 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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests his under other than honorable conditions discharge be upgraded to honorable.

2. The applicant states, in effect, on 11 May 2006, he was discharged from the Army with an under other than honorable conditions discharge. He does not deny that he used drugs as a form of self medication for an illness that he did not know he was suffering from at the time. After returning from Iraq he wasnt the same.

a. Application Receipt Date: 23 December 2013
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 11 May 2006
d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, 14-12c (2), JKK, RE-4
e. Unit of assignment: 1-8th Infantry Regiment (Rear) (Provisional),
3rd Brigade Combat Team (Rear) (Provisional), Fort Carson, CO
f. Current Enlistment Date/Term: 10 September 2010, 4 years
g. Current Enlistment Service: 1 year, 8 months, 2 days
h. Total Service: 3 years, 7 months, 27 days
i. Time Lost: 40 days
j. Previous Discharges: USAR 020518-020805/NA
RA 020806-100909/HD
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 11B10, Infantryman
m. GT Score: 95
n. Education: HS Graduate
o. Overseas Service: Southwest Asia
p. Combat Service: Iraq (030411-040303)
q. Decorations/Awards: ARCOM, AAM-2, NDSM, GWOTSM, ASR,
OSR, CIB
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 6 August 2002, and reenlisted on 10 September 2004, for a period of 4 years. He was 22 years old at the time of his reenlistment and a high school graduate. He served a combat tour in Iraq totaling 10 months and 22 days from 2003 until 2004. He earned several awards that included an ARCOM, an AAM and a CIB. When his discharge proceeding were initiated he was serving at Fort Carson, CO. At the time of discharge he had completed a total of 3 years, 7 months and 27 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. On 18 April 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct-commission of a serious offense. Specifically for:

a. testing positive for methamphetamines on a urinalysis between (050428), ( 050616),

b. driving while under the influence of alcohol (040730),

c. larceny (050730),

d. escaping from the civilian authorities on (050826), and AWOL (050714-050822).

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 18 April 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, 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 an under other than honorable conditions discharge.

4. The General Court Martial Convening Authority memorandum approving the unconditional waiver request and directing the applicants discharge from the service with a characterization of service of under other than honorable conditions is not part of the available record and government regularity is presumed in the discharge process.

5. On 4 May 2006,, Department of the Army, Installation Management Agency, Headquarters, US Army Garrison, Fort Carson, CO, issued amended Orders Number 124-0029, which discharged the applicant from the Army effective 11 May 2006.

6. The applicant was separated on 11 May 2006, under the provisions of Army Regulation 635-200, Chapter 14-12c (2), with an under other than honorable conditions discharge, an SPD code of JKK, and an RE code of 4.

7. The applicants record of service indicates he had 40 days of time lost for being AWOL from 14 July 2005 until his return on 22 August 2005. Also, there is a DD Form 4187 dated 14 September 2005, showing the applicant was incarcerated for 210 days for driving under the influence and was released on 5 February 2006, see DD Form 2708. However, this period of lost time is not shown on the DD Form 214 block 29, time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Summarized Article 15, dated 3 August 2004, for blowing A O.17 BAC on a breathalyzer causing him to be incapacitated for the proper performance of his duties through prior wrongful indulgence in intoxicating liquor or any drug on (040730). His punishment consisted of 14 days of restriction.

2. A negative counseling statements dated 30 July 2004, for reporting to a recall alert for Operation Noble Eagle with the smell of alcohol on his breath.

3. Several DA Forms 4187 with various dates showing the applicant PFD to AWOL, AWOL to DFR, DFR to RMC and a DA Form 4187 dated 14 September 2005, showing the applicant was incarcerated for 210 days for driving under the influence.

4. A civilian police from the EL Paso County Sherriff Office dated 14 September 2005, showing the applicant was charged with driving while ability was impaired x2, AGG motor vehicle theft and escape.

5. The record contains the results of a urinalysis test coded as IR (Inspection Random), dated 28 April 2005, that was positive for Amphetamine, Methamphetamine.

6. The record contains the results of another urinalysis test coded as CO (Competence for duty), dated 16 June 2005, that was positive for Amphetamine, Methamphetamine.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant did not provide any with the application.

POST-SERVICE ACTIVITY:

The applicant did not provide any 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 members 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 Soldiers separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1. After a careful review of all the applicants military records and the issue submitted with the application, the characterization of service appears to be improper.

2. The record confirms that on 16 June 2005, the applicant was given a command directed urinalysis (CO) and he tested positive for amphetamine and methamphetamine.

3. The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 16 June 2005, which was coded CO (Command Directed/Competence for Duty). This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicants competence for duty. Use of this information mandates award of an honorable characterization of service.

4. Further, there is no indication the command believed the urinalysis was improperly coded CO. There are also no CID reports or counseling statements that shed any light on the reason the urinalysis was authorized.

5. Therefore, it appears the urinalysis was properly coded CO 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 commands 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 records show the proper discharge and separation procedures were not followed in this case.

7. Therefore, the characterization of service being improper, recommend the Board grant full relief by upgrading the applicants 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: 12 November 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 UOTH – Under Other Than Honorable
ADRB Case Report and Directive (cont) AR20140000477

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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