AR20140002783

IN THE CASE OF:

BOARD DATE: 9 June 2014

CASE NUMBER: AR20140002783
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicants record of service during the period of enlistment under review and notwithstanding the examiners Discussion and Recommendation which follows, the Board noted that the government introduced a document into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. 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. 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 an upgrade of his discharge from general, under honorable conditions to honorable.

2. The applicant states, in effect, that he would like to be able to sustain a job and he was injured while serving in the military.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 6 February 2013
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 18 June 2013
d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, 14-12c(2) JKK, RE-4
e. Unit of assignment: HHT, 1st Squadron, 14th Cavalry Regiment, Joint Base Lewis-McChord, WA
f. Current Enlistment Date/Term: 3 October 2012, 4 years
g. Current Enlistment Service: 8 months, 15 days
h. Total Service: 4 years, 5 months, 6 days
i. Time Lost: None
j. Previous Discharges: RA (090113-121002), HD (Concurrent Service)
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 74D10, Chemical Operations Specialist
m. GT Score: 92
n. Education: HS Graduate
o. Overseas Service: SWA x 2
p. Combat Service: Iraq (091020-100806) and Afghanistan (111202- 121204)
q. Decorations/Awards: ARCOM-2, AAM, AGCM, NDSM, ACM-CS, ICM- w/CS, ASR, OSR-2, NATO MDL
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 January 2009, for a period of 3 years and 22 weeks. He was 21 years old at the time of entry and was a high graduate. He reenlisted on
3 October 2012, for a period of four years. He was serving at Joint Base Lewis-McChord, WA
when his discharge was initiated. The service record shows the applicant received several awards including two ARCOMs, AAM, AGCM, and served a combat tour in Iraq and Afghanistan.

SEPARATION FACTS AND CIRCUMSTANCES

1. The evidence shows on 14 May 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, for misconduct-abuse of illegal drugs, specifically for wrongfully using marijuana (130120-130220).

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 May 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and stated that he would submit a statement on his behalf (NIF). 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 of the separation with a general, under honorable conditions discharge.

4. On 30 May 2013, 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 18 June 2013, for misconduct (drug abuse), under the provisions of AR 635-200, paragraph 14-12c(2), with an SPD Code of JKK, and an RE code of 4.

6. The service record does not contain any evidence of time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD

1. CG Article 15 imposed on 25 April 2013, for wrongfully using marijuana (130120-130220). His punishment consisted of a reduction to the grade of E-3.

2. Summarized Article 15 imposed on 5 July 2012, for disobeying a lawful order (120525-120608). His punishment consisted of 14 days of extra duty and restriction.

3. Two negative counseling statements, dated between 14 June 2012 (disobeying a NCO) and 7 March 2013 (wrongful use of marijuana).

4. The record also contains the results of a urinalysis coded as IU (Inspection Unit), dated 20 February 2013, that was positive for marijuana (130120-130220).

EVIDENCE SUBMITTED BY THE APPLICANT

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY:

None provided 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. The applicants request for an upgrade of the characterization of his discharge 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.

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 service below that meriting an honorable discharge. His record of service was marred by two Articles 15 for violations of the Uniform Code of Military Justice.

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 record contains a memorandum, from the applicants trial defense attorney, dated 24 April 2013, referencing possible violation of the limited use policy. However, even if the applicant had self-referred to ASAP, he would not have been insulated from a valid unit inspection (IU) UA in which he tested positive. So long as the UA was a valid IU and not a subterfuge for “CO” UA, the results of the UA could have been used as the basis for the Article 15 he received, and its inclusion in the separation packet would not have been a violation of limited use policy. The TDS attorney’s introduction of the attempted self-referral in and of itself does not invoke the limited use policy.

5. The applicant contends that he wants to be able to sustain a job and he was injured while serving in the military. 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 applicants discharge is commensurate with his overall service record.

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

BOARD DETERMINATION AND DIRECTED ACTION:

After carefully examining the applicants record of service during the period of enlistment under review and notwithstanding the examiners Discussion and Recommendation, the Board noted that the government introduced a document into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. 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. The Board found the reason for discharge was fully supported by the record and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 9 June 2014 Location: Washington, DC

Did the Applicant Testify: No

Counsel: None

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 RE Code to: No Change
Grade Restoration to: NA
Change Authority for Separation: No Change
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) AR20140002783

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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