IN THE CASE OF: Mr. BOARD DATE: 30 October 2013 CASE NUMBER: AR20130005369 ___________________________________________________________________________ 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 the discharge was both proper and equitable and voted to deny relief. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27, contains the erroneous re-entry code of 3. The Board directed an administrative correction to block 27 to read RE-4, as required by Army Regulations. 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 APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his discharge from general, under honorable conditions to honorable. 2. He states, in effect, his discharge was an error because he had a choice to get out and he did; but did not know the characterization of his discharge would be general, under honorable conditions. He would like to join the Coast Guard and this discharge is preventing him from doing so. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 15 March 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 7 December 2007 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, Chapter 14, paragraph 14-12c(2), JKK, RE-3 e. Unit of assignment: E Co, 1-506th Infantry Regiment, 4th Brigade Combat Team, Fort Campbell, KY f. Current Enlistment Date/Term: 30 November 2006, period of service NIF/see DD Form 215 g. Current Enlistment Service: 1 year, 8 days h. Total Service: 3 years, 4 months, 5 days i. Lost time: None j. Previous Discharges: RA (040803-061129)/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 88M10, Motor Transport Operator m. GT Score: 93 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (051121-061123) q. Decorations/Awards: ARCOM, NDSM, ICM, GWOTSM, ASR, OSR, CAB 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 3 August 2004, for a period of 3 years and 18 weeks. He was 19 years old at the time of entry and a HS Graduate. He was trained in and awarded military occupational specialty (MOS) 88M10, Motor Transport Operator. The record further shows he reenlisted on 30 November 2006; the period of service was not in the file, see DD Form 215. He was 22 years old at the time and a HS Graduate. His record also shows he served a combat tour; earned several awards including an ARCOM and a CAB; and he achieved the rank of SPC/E-4. He was serving at Fort Campbell, KY when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 27 September 2007, 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- commission of a serious offense/drug abuse. Specifically for the following offenses: a. testing positive for marijuana b. failing to report to his appointed place of duty on several occasions c. driving while under the influence of alcohol while under the legal drinking age 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. The applicant was afforded the opportunity to consult with legal counsel and waived his right to consult with 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. On 2 November 2007, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant’s record of service does not contain any documented evidence of unauthorized absences or lost time. 6. The applicant was discharged from the Army on 7 December 2007, 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), a Separation Program Designator code (SPD) of JKK and an RE code of 4. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A Summary Court-Martial, dated 13 June 2005 for wrongfully using marijuana (050208-050308); the punishment consisted of reduction to E-1, forfeiture of $617 for two months, extra duty for 45 days, and restriction for 45 days. 2. An Article 15, dated 6 July 2007 for, without authority, fail to go at the time prescribed to his appointed place of duty x 2 (070423, 070430); the punishment consisted of reduction to E-3, extra duty for 14 days and restriction for 14 days, (CG). 3. He received nine negative counseling statements, dated between 9 Feb 2005 and 18 July 2007, for failing to report on numerous occasions, and a positive urinalysis. 4. The record of evidence also contains a positive urinalysis report coded IR (Inspection Random, dated 17 July 2007 for marijuana. 5. A DA Form 3822-R (Report of Mental Status Evaluation), dated 8 June 2007 which indicated the applicant was seen and evaluated as required for Chapter 14 separation and psychiatrically cleared for any administrative action deemed appropriate by command. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application, DD Form 214, DD Form 215, Enlistment/Reenlistment Document (four pages), two DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ), positive urinalysis, marijuana, (two pages), DA Form 3881 (Rights Warning Procedure/Waiver Certificate), DA Form 2823 (Sworn Statement), two pages, DD Form 2329 (Record of Trial by Summary Court-Martial), two pages, Memorandum for Record, Review of Summary Court-Martial, and DD Form 2707 (Confinement Order, Chapter 14 Separation Packet), thirty-six pages. 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 member’s 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 Soldier’s separation specifically allows such characterization. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s 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. 2. The record confirms the applicant’s 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 applicant’s record of service was marred by a Summary Court-Martial, an Article 15, nine negative counseling statements, and a positive urinalysis report. 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 contends his discharge was an error because he had a choice to get out and he did; but did not know the characterization of his discharge would be general, under honorable conditions. However, 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 applicant’s discharge is commensurate with his overall service record. 5. Further, the evidence of record shows the applicant was afforded the opportunity to consult with legal counsel and waived his right to consult with counsel. However, he understood that he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. 6. The records show the proper discharge and separation authority procedures were followed in this case. 7. The service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 3. The discharge packet confirms the separation authority approved the discharge by reason of misconduct (drug abuse). AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (drug abuse) will be assigned an SPD Code of JKK and an RE Code of 4. 8. In view of the foregoing and notwithstanding the propriety of the discharge, recommend the Board change block 27, reentry code to 4, as approved by the separation authority. 9. The applicant would like to join the Coast Guard and this discharge is preventing him from doing so. However, 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. 10. Except for the foregoing modification to the applicant's RE code, the discharge was both proper and equitable. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 30 October 2013 Location: Washington, DC Did the Applicant Testify: NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 2 No Change: 3 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: No Change Change Reason to: No Change Change RE Code to: 4 Grade Restoration to: NA Change Authority for Separation: 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) AR20130005369 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1