IN THE CASE OF: Mr. BOARD DATE: 24 April 2015 CASE NUMBER: AR20140007277 ___________________________________________________________________________ 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 RO (Rehabilitation) and that it was part of the applicant’s 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 applicant’s 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 as approved by the separation authority was proper and equitable and the Board voted not to change the approved narrative reason for the applicant’s discharge. 4. Accordingly, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, 27, and 28, contain erroneous entries, and directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority: a. block 25, separation authority change to AR 635-200, paragraph 14-12b, b. block 26, separation code change to JKA, c. block 27, reentry code change to “3,” and c. block 28, narrative reason for separation change to Pattern of Misconduct. 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 to upgrade the characterization of his service from under other than honorable to honorable. 2. The applicant states, in effect, an upgrade would allow him to obtain a better career, and job options and opportunities. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 21 April 2014 b. Discharge Received: Under Other Than Honorable Conditions (per DD Form 215) c. Date of Discharge: 10 December 2004 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: 41st Trans Co, 18th Corps Spt Bn, 100th Area Spt Grp, 7th Army Training Command, Vilseck, Germany f. Current Enlistment Date/Term: 30 April 2003, 4 years (per DD Form 215) g. Current Enlistment Service: 1 year, 7 months, 11 days (per DD Form 215) h. Total Service: 1 year, 7 months, 11 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 88M10, Motor Transport Operator m. GT Score: 104 n. Education: GED o. Overseas Service: Germany, SWA p. Combat Service: Iraq (031204-040309) q. Decorations/Awards: ARCOM; NDSM; GWOTEM; GWOTSM; ASR r. Administrative Separation Board: No, unconditionally waived 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 30 April 2003, for a period of 4 years. He was 20 years old at the time of entry and had a high school equivalency (GED). He was trained in and awarded military occupational specialty (MOS) 88M10, Motor Transport Operator. He served in Germany and Iraq. He earned an ARCOM. He completed 1 year, 7 months, and 11 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 9 November 2004 (as acknowledged by the applicant), 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 of pattern of misconduct, specifically for the following incidents: a. being found guilty of driving under the influence, in violation of Article 111, UCMJ (040830); b. being found guilty of making a false official statement, in violation of Article 107, UCMJ (040727); and c. having numerous counseling statements for being late to formation and other instances. 2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. Subsequently, the applicant waived his right to consult with legal counsel, indicated he understood the impact of the discharge action, and voluntarily waived consideration of his case by an administrative separation board 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 commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge. 4. On 1 December 2004, the separation authority approved the unconditional waiver, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions under the provisions of AR 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct. 5. The applicant was discharged from the Army on 10 December 2004, with a characterization of service of under other than honorable conditions (per DD Form 215) 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 applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 14 September 2004, for driving under the influence (040725). The punishment consisted of forfeiture of $596 per month for two months, and 45 days of extra duty and restriction, (FG). 2. Article 15, dated 27 July 2004, for assaulting another Soldier (040424) and making a false official statement (040623). The punishment consisted of a reduction to E-1, forfeiture of $597 pay per month for two months, and 45 days of extra duty and restriction, (FG). 3. Eleven negative counseling statements, dated between 17June 2004 and 15 October 2004, for disrespecting an NCO; not being at his appointed place of duty at the prescribed time; making a false official statement; disobeying an order; failing to adhere to good order and discipline; assaulting another Soldier; driving under the influence of alcohol on two occasions; altering a medical sick call slip; and being referred for a mental evaluation. (Note that the counseling statement, dated 22 June 2004, indicates the applicant failed to attend his CCC (Community Counseling Center) appointment, and the counseling statement, dated 2 August 2004, indicates the applicant drove under the influence on 30 May 2004 and 25 July 2004.) 4. Memorandum, dated 7 October 2004, subject: Confirmed Urinalysis Testing Results, rendered by a clinical director with ASAP / Community Counseling Center, indicates the specimen collected from the applicant on 15 September 2004, was confirmed positive for THC and that the type of test was “RO” (Rehabilitation Testing) and further stipulated that the person identified with a positive urinalysis would be referred to the CCC for evaluation and or enrollment, and that it was the commander’s responsibility to report the confirmed positive to the CID. (Note that this may present the “RO” coding as miscoded information according to the CID report information that follows.) 5. A CID Report, dated 20 October 2004, indicates the applicant was the subject of an investigation for wrongfully possessing and using marijuana, which also provides that the basis for the investigation resulted when the applicant’s unit commander notified the CID because the applicant tested positive for THC, during a unit urinalysis conducted on 15 September 2004. The report further identifies the unit prevention leader conducting the unit administered urinalysis who stated that the urinalysis was conducted according to AR 600-85. 6. A General Officer Memorandum of Reprimand (GOMOR), dated 11 August 2004, for driving while intoxicated with a suspended driver’s license and eluding a military police safety checkpoint. 7. An MP Report, dated 30 May 2004, indicates the applicant was the subject of an investigation for operating a motor vehicle under the influence of alcohol. 8. An MP Report, dated 25 April 2004, indicates the applicant was the subject of an investigation for aggravated assault. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided none. 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 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 and the issues submitted with the application, the characterization of service appears to be improper. 2. However, the service record further indicates that someone in the discharge process erroneously entered the reason for separation as misconduct (drug abuse), authority as AR 635-200, paragraph 14-12c(2), and SPD code of JKK, contrary to the separation authority’s decision approving the discharge under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct. 3. The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 15 September 2004, which was coded RO (Rehabilitation). 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 from the subsequent CID report which indicated that the positive report was a result of a unit urinalysis conducted on 15 September 2004, but it did not provide any information on the type of urinalysis and how many Soldiers were tested. The record further indicates the applicant had a previous DUI, which would have resulted in an enrollment in the Army Substance Abuse Program (ASAP), and that the confirmed positive results in the packet was part of the applicant’s ASAP treatment plan. Therefore, it would be limited use information as defined in AR 600-85, which is protected evidence because the test was administered as part of the applicant’s rehabilitation program. Accordingly, use of this information mandates award of an honorable characterization of service. 4. The records show the proper discharge and separation procedures were not followed in this case. 5. 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 as approved by the separation authority was fully supported by the record and remains both proper and equitable, except for the erroneous entries described at the preceding paragraph 2. Accordingly, recommend the Board direct the following changes: a. change block 25, separation authority to AR 635-200, paragraph 14-12b; b. change block 26, separation code to JKA; c. change block 27, reentry code to “3”; and c. change block 28, narrative reason for separation to Pattern of Misconduct. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 24 April 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 5 No Change: 0 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: Misconduct (Pattern of Misconduct) Change Authority for Separation: AR 635-200, Chapter 14, Paragraph 14-12b Change RE Code to: 3 Grade Restoration to: Other: Separation Program Designator (SPD) code JKA 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) AR20140007277 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1