IN THE CASE OF: Mr. BOARD DATE: 14 March 2014 CASE NUMBER: AR20130019809 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service, to include his combat service, and his testimony, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable 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 APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his general, under honorable conditions discharge to honorable and a change to the narrative reason for discharge. 2. The applicant states, in effect, he served three and a half years in the military with pride and dignity. He deployed twice and received an Army Achievement Medal (AAM) and Army Commendation Medal (ARCOM). He contends upon his redeployment he encountered difficulties sleeping and developed an alcohol and marijuana addiction. He states he requested assistance through his chain of command, but was denied. He contends he was never informed of any drug and alcohol intervention programs or psychiatric help available to him. He eventually tested positive on a urinalysis and was separated from the military. He states since his discharge, he has been employed with the same company for nine years and is tested regularly. He will enroll in college to become a physical therapy assistant and wants to help veterans. He contends he regrets his choice to use marijuana however he loved his country and served proudly. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 4 November 2013 b. Discharge Received: General, Under Other Than Honorable c. Date of Discharge: 21 June 2004 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: HHC, 1-30th Infantry, 3rd Infantry Division, Fort Benning, GA f. Current Enlistment Date/Term: 9 September 2000/4 years g. Current Enlistment Service: 3 years, 9 months, 16 days h. Total Service: 3 years, 9 months, 16 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 91W10, Medical Specialist m. GT Score: 118 n. Education: GED o. Overseas Service: NIF p. Combat Service: NIF q. Decorations/Awards: GWOTSM, NDSM, ALB, ASR, NATO MDL, CMB r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 6 September 2000 for a period of 4 years. He was 19 years old at the time of entry. His record is void of any significant awards and acts of valor. He completed 3 years, 9 months, 16 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Benning, Georgia. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 21 April 2004, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, for misconduct, specifically for wrongful use of marijuana. 2. Based on the above misconduct, the commander recommended a general, under honorable conditions discharge. 3. On 28 April 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and elected to submit a statement in his own behalf. On 29 April 2004, the applicant provided a response to the separating authority. He contended that he realized he made a major mistake in using illegal drugs. However, it did not reflect his dedication and pride in being a Soldier. He stated he disgraced himself, unit, and the Soldiers in his unit. 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 7 June 2004, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was separated on 6 September 2000, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3. 6. The applicant’s record contains no evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 3 March 2004, for wrongful use of marijuana. The punishment consisted of a reduction to the grade of E-1, forfeiture of $596 pay per month for two months, 45 days of extra duty and restriction (FG). 2. DA Form 4856 (Developmental Counseling Form), dated 12 February 2004, for wrongful possession and use of a controlled substance, THC, in violation of Article 112a of the UCMJ. 3. DD Form 2624 (Specimen Custody Document-Drug Testing), indicated specimen collected on 5 January 2004, reflected a positive urinalysis for THC. The applicant was identified by his Social Security Number. The document shows the basis for the test was for a unit sweep (IU). 4. A Criminal Investigative Division (CID) Report, dated 25 February 2004, indicated the applicant’s positive urinalysis was reported by the Garrison Commander, Fort Benning, Georgia, on 24 February 2004. 5. DA Form 2823 (Sworn Statement), dated 24 February 2004, the applicant stated he attended a party on 1 January 2004, and was offered marijuana which he accepted. He contended he smoked approximately four marijuana cigarettes. 6. DA Form 3822-R (Report of Mental Status Evaluation), dated 31 March 2004, indicated the applicant had a clear thought process and no mental health problems were seen during his examination that required disposition through medical channels. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application, dated 25 October 2013; a DD Form 214; a letter of support, dated 30 October 2013, from Mr. C, a retired member of Congress; two DA Forms 4856, dated 7 December 2001 and 3 March 2002, for military performance and personal growth; two DA Forms 638 (Recommendations for Award), dated 6 April 2002 and 19 April 2003, reflect the applicant was recommended for an Army Achievement Medal (AAM) for meritorious service and an Army Commendation Medal (ARCOM), for meritorious achievement. The applicant provided additional documentation on 6 March 2014. In a self-authored statement, the applicant states he did not recall receiving a mental status evaluation in conjunction with his separation. He states the evaluation did not mention any complaints about his sleep pattern; a chronological record of medical care, dated 31 March 2004, indicates the applicant was seen by Outpatient Mental Health Service due to his commander’s request for administrative separation. The document did not list any symptoms or diagnosis. POST-SERVICE ACTIVITY: The applicant states he has been employed with the same company since January 2005, over nine years and will enroll in the local college with plans of entering the physical therapy assistant program so he can help returning veterans. 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense). 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 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 documents 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 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 FG Article 15 for a violation of the UCMJ, a negative counseling statement, and a positive urinalysis for THC. 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 he did not receive any assistance from his chain of command with his alcohol and marijuana addictions. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. 5. The applicant contends that he had good service which included two deployments to Kosovo and Iraq where he earned an AAM and ARCOM. 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 incident of misconduct or by the negative counseling statement and the documented action under Article 15 of the UCMJ. The records show the proper discharge and separation authority procedures were followed in this case. 6. The applicant contends that since leaving the Army he has been continuously employed. For nine years he held a position with the same company where he is randomly drug tested. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application. However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 7. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 8. The applicant contends he developed sleeping difficulties and developed a marijuana and alcohol addiction. However, the service record does not support the applicant’s contention and he did not provide any evidence to corroborate the discharge was the result of any medical condition which may have disqualified the applicant for further military service with either medical limitation or medication. Additionally, the applicant provided evidence to indicate on 31 March 2004, he underwent a mental status evaluation, however, it did not provide any diagnosis or symptoms for treatment. 9. 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: Personal Appearance Date: 14 March 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted one document: a written sworn statement – 1 page 2. The applicant submitted additional contentions that he served in Iraq and Kosovo and received an ARCOM and AAM. In addition to the evidence in the record, the Board carefully considered the additional document and testimony presented by the applicant at the personal appearance hearing. 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 Authority for Separation: NA Change RE Code to: NA Grade Restoration to: 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) AR20130019809 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1