IN THE CASE OF: Mr. BOARD DATE: 4 April 2014 CASE NUMBER: AR20130014025 ___________________________________________________________________________ Board Determination and Directed Action 1. 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 to be both proper and equitable and voted to deny relief. 2. Further, notwithstanding the propriety of the applicant's discharge, the Board noted certain administrative errors on the applicant's DD Form 214 and directed the following changes as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, b. block 26, separation code changed to JKQ, c. block 28, narrative reason for separation changed to Misconduct (Serious Offense). 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. The applicant states, in effect, that he did two tours in three years. He only enlisted for three years and was discharged the last month of his deployment. He completed the majority of his contract and thinks he deserves an honorable discharge. He needs to have an honorable discharge to be able to further his education, which is one of the reasons he signed up other than to protect his country. He was an operating room scrub nurse prior to joining and was hoping to become a medic. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 29 July 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 10 December 2009 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, 14-12c(2) JKK, RE-4 e. Unit of assignment: A Battery, 1st Battalion, 82nd Field Artillery Regiment 1st Brigade Combat Team, Camp Taji, Iraq 09378 f. Current Enlistment Date/Term: 21 March 2007, 3 years and 17 weeks g. Current Enlistment Service: 2 years, 8 months, 20 days h. Total Service: 2 years, 8 months, 20 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 13B10, Cannon Crewmember m. GT Score: 113 n. Education: GED o. Overseas Service: SWA x 2 p. Combat Service: Iraq (071024-080126 and 090202-091110) q. Decorations/Awards: NDSM, ICM-w/CS, GWOTSM, ASR, OSR, MUC 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 21 March 2007, for a period of 3 years and 17 weeks. He was 30 years old at the time of entry and was a GED certificate. He was serving at Camp Taji, Iraq, when his discharge was initiated. The service record does not show the applicant received any awards; however, he served two combat tours in Iraq. SEPARATION FACTS AND CIRCUMSTANCES 1. The evidence shows that on 4 October 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for commission of a serious offense, specifically for receiving a FG Article 15 for wrongful using of marijuana on 30 January 2009; and having a positive urinalysis for marijuana on 13 March 2008. 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 4 October 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived an appearance before an administrative separation board even though he was not entitled to one, 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 of the separation with a general, under honorable conditions discharge. 4. On 10 October 2009, 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 was discharged from the Army on 10 December 2009, for misconduct (commission of serious offense), under the provisions of Chapter 14-12c, with an SPD Code of JKQ, and RE code of 3. 6. The service record does not show any periods of time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD 1. Field Grade Article 15 imposed on 30 June 2009, for wrongfully using marijuana (between 081213-090113). His punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $699.00 per month for two months, 45 days of extra duty and restriction. 2. Two negative counselings dated 27 January 2009 and 7 June 2009, for positive urinalysis results for marijuana, failing to obey a regulation, and wrongful use of marijuana. 3. The record also contains the results of a urinalysis coded as IU (Inspection Unit), dated 13 January 2009, that was positive for marijuana. EVIDENCE SUBMITTED BY THE APPLICANT The applicant provided a DD Form 293 and a DD Form 214. 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 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 service record and the issue 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 service below that meriting an honorable discharge. His record of service was marred by one Article 15 and several negative counseling statements 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 applicant’s service mitigated the misconduct or poor duty performance. 4. The applicant contends that he did two tours in three years. He only enlisted for three years and was discharged the last month of the deployment. He completed the majority of his contract and think that he should get an honorable discharge. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the two negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice. 5. The applicant contends he needs an honorable discharge to be able to further his education, which is one of the reasons he signed, other than to protect his country. He was an operating room scrub nurse prior to joining and was hoping to become a medic. However, 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 review of the applicant’s record also revealed that someone in the discharge process erroneously entered the reason for separation as misconduct (drug abuse). The separation authority, notwithstanding the recommendations of the subordinate commanders approved the discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct (serious offense). 7. In view of the foregoing, the characterization of service being both proper and equitable, recommend the Board deny relief. Further, it is recommended that block 25 be changed to read separation authority to AR 635-200, paragraph 14-12c, block 26, separation code to JKQ, and block 28, reason for separation to Misconduct (Serious Offense), as it was approved by the separation authority. 8. 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. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 4 April 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None 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: Yes Change Characterization to: No Change Change Reason to: Misconduct (Serious Offense) Change RE Code to: No Change Grade Restoration to: NA Change Authority for Separation: AR 635-200, Chapter 14, Paragraph 14-12c Other: Separation Program Designator (SPD) code JKQ 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) AR20130014025 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1