AR20140001801

IN THE CASE OF: Mr.

BOARD DATE: 9 May 2014

CASE NUMBER: AR20140001801
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and considering the examiners 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 APPLICANTS REQUEST AND STATEMENT:

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

2. The applicant states, in effect, he feels throughout the chapter process he was treated very poorly, in an unprofessional, degrading manner and was being used as an example. His misconduct was an isolated incident. He smoked marijuana due to issues he was having after seeing a fellow Soldier die in combat. He desires the opportunity to serve again.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 23 January 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 22 August 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: B Company, 2-1st Infantry Regiment, Joint Base Lewis-McChord, WA
f. Current Enlistment Date/Term: 30 July 2012, 3 years
g. Current Enlistment Service: 1 year, 23 days
h. Total Service: 3 years, 5 months, 7 days
i. Lost time: None
j. Previous Discharges: RA (100316-120729)/HD
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 11B10, Infantryman
m. GT Score: 86
n. Education: HS Graduate
o. Overseas Service: Southwest Asia
p. Combat Service: Afghanistan (100905-110425)
q. Decorations/Awards: ARCOM, AGCM, NDSM, ACM-W/CS, GWOTSM ASR, OSR, NATO MDL, CIB, VUA
r. Administrative Separation Board: No
s. Performance Ratings: No
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant’s record shows he enlisted in the Regular Army on 16 March 2010, for a period of 3 years and 16 weeks. He was 30 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman. He reenlisted on 30 July 2012, for a period of 3 years and was 33 years old at the time. His record also shows he served a combat tour, earned several awards including an ARCOM, AGCM, and a CIB; and he achieved the rank of SPC/E-4. He was serving at Joint Base Lewis-McChord, WA when his discharge was initiated.
SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates on 13 June 2013, 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 misconduct-abuse of illegal drugs for wrongfully using marijuana (130414-130514).

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 29 July 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.

4. 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 22 August 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 an RE code of 4.

6. The applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. An Article 15, dated 13 June 2013, for wrongfully using marijuana (130414-130514); the punishment consisted of reduction to E-3, forfeiture of $1,007 pay, extra duty for 45 days, and an oral reprimand (FG).

2. The record also contains a positive urinalysis report coded IU (Inspection Unit), dated 14 May 2013, for THC.

3. A DA Form 3822-R (Report of Mental Status Evaluation), dated 14 June 2013, which indicated the applicant was diagnosed with an acute adjustment disorder. However, he could appreciate the difference between right and wrong, could understand and participate in administrative proceedings and was cleared from a behavioral health perspective for administrative action IAW AR 63 5-200.

4. The applicant received a negative counseling statement, dated 28 May 2013, for testing positive for marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application (seven pages), DA Form 4187 (Personnel Action), with personnel action form addendum, discharge orders 226-0021 (two pages), two DA Forms 4856 (Developmental Counseling Form), and a Chapter 14 discharge packet (eight pages).

POST-SERVICE ACTIVITY:

The applicant did not provide any information with his 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.

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), 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 4.

ANALYSTS DISCUSSION AND RECOMMENDATION:

1. The applicants 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 applicants record of service, his military records, the issues and documents 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 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 his service below that meriting an honorable discharge. The applicants record of service was marred by an Article 15, a positive urinalysis report, and a negative counseling statement.

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

4. The applicant requested a change to the narrative reason for separation. 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 misconduct (drug abuse). The regulation further stipulates that no deviation is authorized.

5. The applicant contends he feels throughout the chapter process he was treated very poorly, in an unprofessional, degrading manner and was being used as an example. 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.

6. The applicant further contends his misconduct was an isolated incident. Although an isolated 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 an isolated incident provides the basis for a characterization of service. 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.

7. The applicant also contends he smoked marijuana due to issues he was having after seeing a fellow Soldier die in combat. He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.

8. The applicant desires the opportunity to serve again. 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 the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

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

10. 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: 9 May 2014 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: 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 UOTHC – Under Other Than Honorable Conditions

ADRB Case Report and Directive (cont) AR20140001801

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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