AR20140003050

IN THE CASE OF: Mr.

BOARD DATE: 4 March 2015

CASE NUMBER: AR20140003050
___________________________________________________________________________

Board Determination and Directed Action

1. After carefully examining the applicants record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the characterization of service was improper.

2. The record shows the government introduced into the discharge packet results of a biochemical test which was coded RO (Rehabilitation) which was part of the applicants Army Substance Abuse Program (ASAP) treatment plan. 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 rehabilitation program. Use of this information mandates award of an honorable characterization of service.

3. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was proper and equitable and the Board 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 to upgrade the characterization of his service from general, under honorable conditions to honorable.

2. The applicant states, in effect, he was being discharged due to knee issues when he smoked marijuana while he hung around with the wrong people. His service was good other than the incident. Serving his Article 15 punishment caused an additional delay in discharging him. He is going to school to become a probation officer. He is trying to clear up his old issues as he feels he turned his life around. He is a lot more mature now.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 12 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 3 February 2004
d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Paragraph 14-12c(2),
JKK, RE-4
e. Unit of assignment: HHC, 2nd Bn, 27th Infantry, Schofield Barracks, HI
f. Current Enlistment Date/Term: 12 June 2002, 3 years
g. Current Enlistment Service: 1 year, 7 months, 22 days
h. Total Service: 1 year, 7 months, 22 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 11C10, Indirect Fire Infantryman
m. GT Score: 91
n. Education: HS Graduate
o. Overseas Service: Hawaii
p. Combat Service: None
q. Decorations/Awards: NDSM; ASR; OSR
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 12 June 2002, for a period of 3 years. He was 21 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 11C10, Indirect Fire Infantryman. He was serving in Hawaii when he was discharged. His record documents no acts of valor or significant achievement. He completed 1 year, 7 months, and 22 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates on 9 December 2003, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense), specifically for wrongfully using marijuana (030722-030820).

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 9 December 2003, the applicant waived his right to consult with legal counsel, indicated he understood the impact of the discharge action, and made no election of whether he was submitting 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 action and recommended approval with a general, under honorable conditions discharge.

4. In an undated memorandum, 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 3 February 2004, 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, 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. There is a positive urinalysis report contained in the record: RO, Rehabilitation Testing, 20 August 2003, marijuana.

2. Article 15, dated 29 September 2003, for wrongfully using marijuana (030722-030820). The punishment consisted of a reduction to the grade of E-1, forfeiture of $575 per month for two months, and 45 days of extra duty and restriction, (FG).

3. A negative counseling statement, dated 8 September 2003, for testing positive for drug use during a urinalysis, and being enrolled in ASAP and considered an ASAP failure.

4. Memorandum, dated 22 December 2003, subject: Legal Review of Chapter 14 Packet concerning [the applicant], rendered by trial counsel, indicates finding the packet to be legally sufficient.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 for service under current review.

POST-SERVICE ACTIVITY:

The applicant provided none.

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

2. The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 20 August 2003, which was coded RO (Rehabilitation) and that it was part of the applicants Army Substance Abuse Program (ASAP) treatment plan. A negative counseling statement, dated 8 September 2003, further makes reference to the applicant being enrolled in ASAP when the urinalysis was conducted. 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 rehabilitation program. Use of this information mandates award of an honorable characterization of service.

3. The records show the proper discharge and separation procedures were not followed in this case.

4. 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: 4 March 2015 Location: Washington, DC

Did the Applicant Testify, NA

Counsel/Representative: None

Witnesses/Observers: NA

Board Vote:
Character Change: 5 No Change: 0
Reason Change: 1 No Change: 4
(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 UOTHC – Under Other Than Honorable Conditions
ADRB Case Report and Directive (cont) AR20140003050

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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