AR20140000517

IN THE CASE OF: Mr.

BOARD DATE: 5 November 2014

CASE NUMBER: AR20140000517
___________________________________________________________________________

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 that 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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests an upgrade of his general, under honorable conditions discharge to honorable and a change to the narrative reason for separation.

2. The applicant states, in effect, his discharge is inequitable because it was based on one isolated incident within 34 months of otherwise perfect service including 12 months of deployment. He feels because of his MOS 91W at the time he was used to make an example of and held to a higher standard than his peers of which were 11B Infantryman that also tested positive on A UA with him but received lesser punishment such as an Article 15. He feels his punishment compared to the US Army standards were too harsh and not equal as those similar equation. His misconduct was based on him being young and inexperienced. He is currently a Surveillance Agent for Pinnacle Entertainment and wish to further his career in law enforcement. He is currently a member of Zion Watch Baptist Church and volunteer to help the sick and shut-in regularly. He is a model citizen with no criminal history and it has been seven years since his misconduct and he has not used drugs since.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 26 December 2013
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 21 September 2006
d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, 14-12c(2), JKK, RE-4
e. Unit of assignment: Rear Detachment, 2-27th Infantry Battalion, Schofield
Barracks, HI
f. Current Enlistment Date/Term: 1 March 2005, 5 years
g. Current Enlistment Service: 1 year, 5 months, 27 days
h. Total Service: 3 years, 3 months, 21 days
i. Time Lost: 24 days
j. Previous Discharges: USAR 030314-030506/NA
RA 030507-050228/HD
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 91W10, Health Care Specialist
m. GT Score: 109
n. Education: HS Graduate
o. Overseas Service: Southwest Asia
p. Combat Service: Afghanistan (040324-050323)
q. Decorations/Awards: ARCOM, NDSM, GWOTSM, GWOTEM, ASR,
OSR-2, CMB
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: NIF
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 7 May 2003, and reenlisted on 1 March 2005, for a period of 5 years. He was 21 years old at the time of entry and a high school graduate. The applicant served in Afghanistan and earned an ARCOM and a CMB. He was serving at Schofield Barracks, HI, when his discharge proceedings were initiated.

SEPARATION FACTS AND CIRCUMSTANCES

1. The record shows on 16 August 2006, the unit commander notified the applicant of initiation of separation action under the provisions of AR 635-200, Chapter 14, paragraph 14-12c (2), for misconduct-commission of a serious offense, drug abuse, specifically for:

a. wrongfully using cocaine between on or about (060319-060324).

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 16 August 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, even though he was not entitled to such a 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 commander reviewed the proposed separation action and recommended approval with a general, under honorable conditions discharge.

4. On 30 August 2006, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions.

5. The applicant was discharged from the Army on 21 September 2006, for misconduct (drug abuse), under the provisions of Chapter 14, paragraph 14-12c (2), with an SPD Code of JKK, and RE code of 4.

6. The applicant’s record shows he was confined by the military authorities (CMA) during the period 18 April 2006 through 11 May 2006. He was released and returned to his unit.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD

1. A Summary Court-Martial dated 18 April 2006, for wrongfully using cocaine between on or about (060319-060324). He was sentenced to reduction to the grade of private (E-1), forfeiture of $849.00 pay and confinement for 30 days.

2. A urinalysis report in the record dated 24 March 2006, and coded: IU, Unit Sweep, wherein, the applicant tested positive for cocaine.

EVIDENCE SUBMITTED BY THE APPLICANT

DD Form 214 for the period of service ending 21 September 2006, National Registry Emergency Medical Technicians Certificate dated 29 March 2010, and a copy of the original General Grand Encampment of Knights Templars letter.

POST-SERVICE ACTIVITY:

The applicant states in his issue he is currently a Surveillance Agent for Pinnacle Entertainment and wish to further his career in law enforcement. He is currently a member of Zion Watch Baptist Church and volunteer to help the sick and shut-in regularly. He is a model citizen with no criminal history and it has been seven years since his misconduct and he has not used drugs since.

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.

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, paragraph 14-12c(2), for 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.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge and a change to the narrative reason for separation was carefully considered. However, after examining the applicants service record and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge or a change to the narrative reason for separation.

2. The record confirms that the applicants 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 service below that meriting an honorable discharge.

3. The applicant provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that the applicants service mitigated the misconduct or poor duty performance.

4. The applicant contends that his discharge was inequitable because it was based on an isolated incident. 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 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 applicants discharge is commensurate with his overall service record.

5. The applicant contends his misconduct was based on him being young and inexperienced. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6. The applicant further contends in his issue he is currently a Surveillance Agent for Pinnacle Entertainment and wish to further his career in law enforcement. He is currently a member of Zion Watch Baptist Church and volunteer to help the sick and shut-in regularly. He is a model citizen with no criminal history and it has been seven years since his misconduct and he has not used drugs since. The Army Discharge Review Board is authorized to consider post-service factors in the re-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 applicants 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 members overall character. The Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.

7. The applicant requested that the narrative reason for his discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Drug Abuse),” and the separation code is “JKK.” Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation.

8. 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: 5 November 2014 Location: Washington, DC

Did the Applicant Testify, NA

Board Vote:
Character Change: 0 No Change: 5
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 UOTH – Under Other Than Honorable
ADRB Case Report and Directive (cont) AR 20140000517

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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