IN THE CASE OF: Mr. BOARD DATE: 1 November 2013 CASE NUMBER: AR20130006661 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board noted that the government introduced the results of a command directed urinalysis into the discharge process. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. Accordingly, the Board voted to change the characterization of service to honorable. However, the Board found the reason for discharge was fully supported by the record 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 discharge characterization from general, under other than honorable conditions to general discharge with benefits. 2. The applicant states, in effect, that he was going through a very hard time in his life dealing with family matters when he began his drug usage. He was also told that if he helped CID with the names of drug dealers he would get a general discharge with benefits. He was given bad information and did not inquire about it until his application time had expired. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 April 2013 b. Discharge Received: General, Under Other than Honorable Conditions c. Date of Discharge: 20 September 2002 d. Reason/Authority/SPD/RE: Misconduct, AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: HHB 18th FA Bde, Fort Bragg, NC f. Current Enlistment Date/Term: 6 January 2000, 6 years g. Current Enlistment Service: 2 years, 7 months, 17 days h. Total Service: 2 years, 7 months, 17 days i. Lost time: 27 days, AWOL (020525-020606), (020613-020627) j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 52D1P, Power Generator Equipment Repairer m. GT Score: 108 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: AAM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's service record shows he enlisted in the Regular Army on 6 January 2000; he was 18 years old and a high school graduate. He attended basic and advanced individual training at Fort Knox, KY and Aberdeen Proving Grounds, MD and was trained in and awarded military occupational specialty (MOS) 52D10, Power Generator Equipment Repairer. He was stationed at Fort Bragg, NC at the time of his discharge. His record documents no acts of valor or significant achievement. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 6 August 2002, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, specifically for abuse of illegal drugs on four occasions; disobeying a lawful order on two occasions; AWOL on two occasions; and failure to go to his appointed place of duty. 2. Based on the above misconduct, the commander recommended a general, under honorable conditions discharge. 3. On 9 August 2002, the applicant waived legal counsel, was advised of the impact of the discharge action, 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 a under other than honorable conditions discharge. 4. On 6 September 2002, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions discharge certificate under the provisions of AR 635-200, paragraph 14-12c, for the commission of a serious offense. 5. The applicant was separated from the Army on 20 September 2002, under Army Regulation 635-200, Chapter 14-12c (Misconduct), with a under other than honorable conditions discharge, an SPD code of JKQ and an RE code of 3. 6. The applicant’s service record contains evidence of 54 days of lost time based on him being AWOL on three occasions (020525-020606), (020613-020627), and (020904-020930). The lost time annotated in the applicant’s DD Form 214 reflected only two periods of AWOL which was a total of 27 days (020525-020606), (020613-020627). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are four positive urinalysis reports contained in the record: IR, Inspection Random, 23 July 2001, cocaine CO, Competence for Duty/Command Direct/Fitness for duty, 16 May 2002, cocaine CO, Competence for Duty/Command Direct/Fitness for duty, 7 June 2002, cocaine CO, Competence for Duty/Command Direct/Fitness for duty, 27 June 2002, cocaine 2. Article 15, dated 8 March 2002, wrongfully using the government card for personal use (020104-020216); failure to return from leave (020226). The punishment consisted of reduction to E-2, forfeiture of $289.00 for one month, extra duty for 14 days (CG). 3. One negative counseling statement dated 10 January 2002 for being FTR on this date. 4. DA Form 4187 reflecting 27 days AWOL (020904-020930), not recorded on the DD Form 214. 5. A memorandum from LTC (Dr.) S, a psychiatrist at Womack Army Medical Center, Fort Bragg, NC citing an Axis I diagnosis of Cocaine Dependence and clearing the Soldier for whatever administrative action deemed appropriate by the command. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149, dated 10 March 2013; discharge orders 255-0373, dated 12 September 2002; and an Army National Guard Current Annual Statement, dated 1 February 2013. POST-SERVICE ACTIVITY: The applicant’s record reflects his enlistment in the Army National Guard on 10 January 2008, for a period of 5 years, 4 months and 14 days. The applicant was later discharged from the National Guard effective 10 October 2013, with a characterization of service as general, under honorable conditions discharge. 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. The record reflects that immediately follow his return from AWOL, he was given two command directed urinalysis (CO) on 7 June 2002, and 27 June 2002. He tested positive for cocaine on both tests. 3. The record further confirms that on 16 May 2002, the applicant was given a command directed urinalysis, and he tested positive for cocaine. 4. If the test basis for the urinalysis on 16 May 2002 was CO, as stated on the collection sheet, then the discharge was improper. There is no indication in the Chapter paperwork that the command recognized that the “Command Directed Urinalysis” could not be used as the basis for the discharge. Further, there is no indication the command believed the urinalysis was improperly coded “CO.” There are no CID reports or counseling statements that shed any light on the reason the urinalysis was authorized. 5. Therefore, it appears the urinalysis were properly coded CO, the discharge was improperly based on the limited use evidence, and the discharge was improperly characterized given the introduction of the limited use evidence in the Chapter paperwork. 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 treating 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. 6. The records show the proper discharge and separation procedures were not followed in this case. 7. 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: 1 November 2013 Location: Washington, DC Did the Applicant Testify? No 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) AR20130006661 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1