IN THE CASE OF: Mr. BOARD DATE: 5 November 2014 CASE NUMBER: AR20140000231 ___________________________________________________________________________ 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 that the characterization of service was both proper and equitable and voted to deny relief. 2. Further, notwithstanding the propriety of the applicant's discharge, the Board, on the basis of equity and as approved by the separation authority, voted to change the applicant’s reason for discharge, authority, separation code, and reentry code and directed that a new DD Form 214 be issued reflecting the following changes: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c b. block 26, separation code changed to JKQ c. block 27, reentry code changed to 3 d. block 28, narrative reason for separation changed to Misconduct (Serious Offense) 3. Except for the foregoing modifications, the Board determined the discharge was both proper and equitable. 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 from under other than honorable conditions to general, under honorable conditions and a change to his narrative reason for discharge. 2. The applicant states, in effect, that he had good service and deserves an upgrade of his discharge. He contends his discharge was unfair based on his accomplishment. He contends the emotional distress of dealing with the dying of his father, loosing of $80.000.00 by gambling, and the reality of his wife having an affair had an effect on him. He became suicidal and by the support of his family and unit chaplain he got counseling for his gambling. Later he was told he needed to be medically re-classed due to scoliosis. He could not take anymore. He contends other than the incidents between Aug and December 2009 he never received any negative counseling. He was the unit's armor for nearly two years, was responsible for three plus million dollars worth of equipment. He felt he was just doing what was asked of him. He has paid back $14,500.00 for a $10,193.00 bonus recoupment. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 23 December 2013 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 3 December 2009 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, Chapter 14, paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: 27th EN (R) Det, Fort Bragg, NC f. Current Enlistment Date/Term: 15 March 2007, 6 years g. Current Enlistment Service: 2 years, 8 months, 19 days h. Total Service: 6 years, 3 months, 2 days i. Time Lost: None j. Previous Discharges: RA-030902-070314/HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 21B1P, Combat Engineer m. GT Score: 118 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (040820-050625) Afghanistan (060402-070406) q. Decorations/Awards: ARCOM, AAM-3, AGCM, ACM-w/CS, NDSM, GWOTEM, GWOTSM, ASR, OSR-2, NATO MDL, CAB, MUC-3 r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 2 September 2003, for a period of 5 years. On 15 March 2007, he reenlisted for 6 years. He was 31 years old at the time of reenlistment and a high school graduate. His record indicates he served a period of combat in Iraq and Afghanistan; earned several awards including the ARCOM, three AAMs, and the AGCM, and achieved the rank of SGT/E-5. He was serving at Fort Bragg, NC, when separation action was initiated. He completed 6 years, 3 months, and 2 days of military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 28 September 2009, 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 misconduct (serious offense) for failure to report several times and testing positive for marijuana. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 30 September 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, and submitted a statement on his own 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 with an under other than honorable conditions discharge. 4. On 12 November 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions under the provision of Chapter 14, paragraph 14-12c, AR 635-200 for misconduct (serious offense). 5. The applicant was discharged from the Army on 3 December 2009, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), with a Separation Program Designator code (SPD) 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. Summarized Record of Proceedings Under Article 15, UCMJ, imposed on 22 September 2008, for failure to go at the time prescribed to his appointed place of duty x 3 (080827, 080908, and 080917). 2. Article 15, imposed on 14 August 2009, for failure to go at the time prescribed to his appointed place of duty x 6 (090608, 090616, 090619, 090710, 090721, and 090727). The punishment consisted of reduction to the grade of E-4, forfeiture of $1063.00 pay per month for two months, and extra duty and restriction for 45 days (FG). 3. There is a positive urinalysis report dated 10 August 2009, contained in the record coded; IR (Inspection Random), marijuana. 4. Article 15, imposed on 14 September 2009, for failure to go at the time prescribed to his appointed place of duty (090811) and wrongfully using marijuana between (090710 and 090810). The punishment consisted of reduction to the grade of E-1, forfeiture of $699.00 pay per month for two months (suspended), and extra duty and restriction for 45 days (FG). 5. Multiple counseling statements dated between 27 August 2008 and 11 August 2009, for failure to go to his appointed place of duty on several occasions, missing movement, smoking marijuana, missing appointment, and failing to comply with Department of the Army Orders.. 6. A Report of Mental Status Evaluation, dated 27 August 2009, which indicates the applicant was diagnosed with an occupational problem. The Clinical Psychologist determine the applicant was mentally responsible, could distinguish right from wrong and possessed sufficient mental capacity to understand and participated intelligently as a respondent in any administrative proceedings at the time of his discharge. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and DD Form 149, copy of his enlisted record brief (ERB), unit commanders recommendation memorandum, dated 20 October 2008, notification of MOS/Medical Retention Board Proceedings, dated 21 October 2008, additional duty appointment, certificates of training (3), APFT scorecard, physical profile, dated 17 July 2008, and a copy of his DD Form 214 for the period of service under review. POST-SERVICE ACTIVITY: None provided with the 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. 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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse). 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and a change to his narrative reason for discharge was carefully considered. However, after examining the applicant’s record of service, 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 that 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. By the misconduct, the applicant diminished the quality his service below that meriting a general, under honorable conditions discharge. The applicant’s record of service was marred by three Article's 15 for violation of the Uniform Code of Military Justice and by wrongfully using marijuana and failing to go to his appointed place of duty on several occasions as noted in his negative counseling statements. 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 had good service and deserves an upgrade of his discharge. 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 repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice. 5. The applicant contends his discharge was the result of his emotional distress of dealing with his father's death, issues with gambling, medical issues, and personal issues with his wife. While the applicant may believe family and personal issues were the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. 6. The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. 7. Additionally, the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214 the authority as AR 635-200, paragraph 14-12c(2) and SPD code of JKK. However, the evidence of record shows separation action was initiated against the applicant under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense) for the wrongful use of marijuana and failure to report several times. 8. Therefore, the analyst recommends the Board make the following changes: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c b. block 26, separation code changed to JKQ c. block 27, reentry code changed to 3 d. block 28, narrative reason for separation changed to Misconduct (Serious Offense) 9. Except for the foregoing modifications as stated above, the discharge was both proper and equitable and the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 5 November 2014 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 0 No Change: 5 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: No Change Change Reason to: Misconduct (Serious Offense) Change Authority for Separation: AR 635-200, Chapter 14, Paragraph 14-12c Change RE Code to: 3 Grade Restoration to: NA Other: Separation Program Designator (SPD) code JKQ 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) AR20140000231 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1