IN THE CASE OF: Mr. BOARD DATE: 21 January 2015 CASE NUMBER: AR20140003007 ___________________________________________________________________________ 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 characterization was improper. 2. The record shows the government introduced into the discharge packet the results of a biochemical test which was coded CO (Command Directed). This is limited use information as defined in AR 600-85 and is protected evidence. There is no evidence that the command believed the urinalysis was improperly coded “CO” or that the urinalysis test was not used to determine the applicant’s characterization of service. Use of this information mandates award of an honorable characterization of service. 3. Accordingly, the Board voted to grant 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 APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. 2. The applicant states, in effect, he is pursuing a career in the security field and hopes to continue his education. He was promoted early twice during his service and nominated to compete for Soldier of the Month. He always passed his APFT and was a great Soldier. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 10 February 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 16 July 2008 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Chapter 14-12c(2), JKK, RE-4 e. Unit of assignment: Charlie Battery, 3-17th Field Artillery Regiment, Fort Lewis, WA f. Current Enlistment Date/Term: 25 April 2007/3 years, 17 weeks g. Current Enlistment Service: 1 year, 2 months, 22 days h. Total Service: 1 year, 2 months, 22 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: 99 n. Education: GED o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, GWOTSM, ASR r. Administrative Separation Board: Waived s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 25 April 2007, for a period of 3 years and 17 weeks. He was 25 years old at the time of entry and had a General Equivalency Diploma (GED). He is record is void of any significant acts of valor and achievement. He completed 1 year, 2 months, 22 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Lewis, WA. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 30 May 2008, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, misconduct (serious offense). Specifically for abuse of illegal drugs. On 2 January 2008, 28 January 2008, 4 February 2008, and 20 February 2008, the applicant tested positive for cocaine, MDA, MDMA, and marijuana. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge. 3. On 7 June 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and did not submit a statement in 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 an under other than honorable conditions discharge. 4. On 11 July 2008, the separation authority approved the unconditional waiver request, waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 5. The applicant was separated on 16 July 2008, under Army Regulation 635-200, Chapter 14-12c(2), with a under other than honorable conditions discharge, an SPD code of JKK, and an RE code of 4. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are four positive urinalysis reports contained in the record: IO, Inspection Other, 2 January 2008, cocaine, MDA, MDMA PO, Probable Cause, 28 January 2008, cocaine IO, Inspection Other, 4 February 2008, cocaine CO, command directed, 20 February 2008, cocaine, marijuana 2. Two negative counseling statements, dated 28 January 2008 and 19 February 2008, for a positive urinalysis and illegal use of drugs. 3. MEDCOM FORM 699-R (Mental Status Evaluation), dated 27 February 2008, reflects the applicant had clear and normal thought content, was mentally responsible and could distinguish the difference between right and wrong. The evaluation indicates the applicant was enrolled for ASAP counseling. 4. CID Report, dated 14 February 2008, reflects the applicant was the subject of an investigation for possessing and using illegal drugs. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 4 February 2014 and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any in support of his 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. After a careful review of all the applicant’s military records, the characterization of service appears to be improper. 2. The record confirms that on 20 February 2008, the applicant during a command directed urinalysis (CO) tested positive for cocaine and marijuana. There is no indication in the available record that indicates the test was improperly coded or the result of an action based on unit policy, such as return from AWOL or leave. 3. If the test basis for the urinalysis was “CO”, as stated on the collection sheet, the discharge was improper because of the erroneous introduction of limited use evidence. There is no indication in the separation documents that the command recognized that the “CO” based test could not be used for characterization of service when discharging the applicant. Further, there is no indication the command believed the urinalysis was improperly coded “CO.” Moreover, there are no CID reports or counseling statements that shed any light on the reason the urinalysis was authorized. 4. Therefore, it appears the discharge was improperly characterized given the introduction of the limited use evidence in the separation documents. However, the question whether the urinalysis was properly coded is a question of fact for the Army Discharge Review Board to determine given the contrary conclusions that could be drawn by the command’s decision to treat the urinalysis as though it was not limited use evidence. The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded. 5. The records show the proper discharge and separation procedures were not followed in this case. 6. Therefore, the characterization of service being improper, recommend the Board grant full relief by upgrading the applicant’s 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: 21 January 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 5 No Change: o 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 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) AR20140003007 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1