IN THE CASE OF: Mr. BOARD DATE: 15 April 2015 CASE NUMBER: AR20140008434 ___________________________________________________________________________ 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 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 general, under honorable conditions discharge characterization of service to honorable. 2. The applicant does not present any issues of equity or propriety for the Board to consider. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 7 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 30 April 2009 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: A Company, 168th Brigade Support Battalion, Fort Sill, OK f. Current Enlistment Date/Term: 5 January 2006/4 years, 22 weeks g. Current Enlistment Service: 3 years, 3 months, 21 days h. Total Service: 3 years, 3 months, 21 days i. Time Lost: 4 days (Cdr’s Report shows 421 days from 070322-090514) j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92F10, Petroleum Supply Specialist m. GT Score: 99 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (070713-081006) q. Decorations/Awards: ARCOM, NDSM, ICM-CS, OSR r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 5 January 2006, for a period of 4 years and 22 weeks. He was 22 years old at the time of entry and a high school graduate. He served in Iraq and earned an ARCOM. He completed 3 years, 3 months, 21 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Bliss, Texas. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 16 March 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically for: a. testing positive for marijuana (070326, 081120, and 080122), b. testing positive for marijuana and cocaine (081217), c. being AWOL (070322-070326), and d. failing to report for duty (070326 and 090121). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 17 March 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 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 a general, under honorable conditions discharge. 4. On 18 April 2009, 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 30 April 2009, under the provisions of 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 shows he was AWOL during the period 22 March 2007 through 26 March 2007. The applicant’s mode of return is unknown. As a note, the Commander’s Report indicates the applicant was AWOL during the period of 22 March 2007 through 17 May 2008. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A urinalysis test printout reflects the applicant tested positive on four urinalysis tests between 26 March 2007 and 22 January 2009. The evidence indicates two tests were coded “RO”, one test was coded “IR” and the remaining test were coded “IU.” 2. There are four positive urinalysis tests reported in the record: IR, Inspection Random, 26 March 2007, marijuana IR, Inspection Random, 20 November 2008, marijuana RO, Rehabilitation Testing, 17 December 2008, cocaine RO, Rehabilitation Testing, 22 January 2009, marijuana 3. Several negative counseling statements, dated between 26 March 2007 through 2 February 2009; for disobeying a lawful order, malingering, failing to be at his appointed place of duty, extra duty, positive urinalysis tests, physical exam for separation, and Chapter 14 counseling. 4. Article 15, dated 5 January 2009, for wrongful use of marijuana (091020-081120). The punishment consisted of a reduction to the grade of E-2, forfeiture of $745 pay per month for two months, (one month suspended), and 45 days of extra duty (15 days suspended) (FG). 5. Article 15, dated 10 May 2007, for wrongful use of marijuana (070224-070326). The punishment consisted of a reduction to the grade of E-1, forfeiture of $650 pay per month for two months (suspended), 45 days of extra duty (suspended) and 60 days restriction (suspended) (FG). 6. DA Form 3822 (Report of Mental Status Evaluation), dated 4 February 2009, reflects the applicant had a clear and normal thought process and content, was mentally responsible, and had a negative screening for Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI). EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149, dated 20 April 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 the government introduced into the discharge packet the results of a biochemical tests conducted on 17 December 2008 and 22 January 2009, 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. The records show the proper discharge and separation procedures were not followed in this case. 4. Therefore, the characterization of service being improper, recommend the Board grant relief by upgrading the applicant’s characterization of service 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: 15 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: 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) AR20140008434 Page 5 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1