IN THE CASE OF: Mr. BOARD DATE: 21 January 2015 CASE NUMBER: AR20140000738 ___________________________________________________________________________ Board Determination and Directed Action 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 discharge was both proper and equitable and voted to deny relief. 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 to honorable, and that the separation code, the reentry code and the narrative reason for separation be corrected. 2. The applicant states, in effect, there was no chain of custody for the urine analysis (UA) specimen. He was not afforded the opportunity to prove the test was incorrect through hair follicle testing or any other means. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 6 January 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 27 September 2013 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), Chapter 14, Paragraph 14-12c (2), JKK, RE-4 e. Unit of assignment: 17th Infantry Rifle SBC FC, Fort Bliss, TX f. Current Enlistment Date/Term: 5 July 2012, NIF g. Current Enlistment Service: 4 years, 7 Months, 20 days h. Total Service: 5 years, 10 months, 13 days i. Time Lost: None j. Previous Discharges: RA 071115-120704/HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 119 n. Education: College Degree o. Overseas Service: Southwest Asia p. Combat Service: Afghanistan (091201-100110) q. Decorations/Awards: ARCOM, AAM-2, AGCM, NDSM, ACM-CS, GWOTSM, NCOPDR, ASR, OSR, NATOMDL, CIB, EIB, 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 15 November 2007, for a period of 5 years and reenlisted on 5 July 2012, for 3 years. He was 35 years old at the time of entry and had a college degree. He served in Afghanistan and earned several decorations and awards (i.e., ARCOM, AAM-2, AGCM, ACM-CS, and completed a total of 5 years, 10 months and 13 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. 2. The DD Form 214 indicates that on 27 September 2013, the applicant was discharged under the provisions of Chapter 14, Paragraph 14-12c (2), AR 635-200, for misconduct, drug abuse with a characterization of service of general, under honorable conditions. The DD Form 214 also shows a Separation Program Designator (SPD) code of JKK and a reentry (RE) code of 4. 3. On 24 September 2013, HQDA USA Installation Management Command, Fort Bliss, TX, Orders Number 267-0031, discharged the applicant from the Army effective, 27 September 2013. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A notification of confirmation of positive urinalysis results memorandum, dated 28 January 2013, indicated a positive result of marijuana coded as “IU”, Inspection Unit (Unit Sweep). 2. Article 15, dated 22 February 2013, for the wrongful use of marijuana, a schedule ”I” controlled substance. The punishment consisted of reduction to the grade E-4, forfeiture of $1,152.00 pay per month for 2 months, suspended, extra duty for 45 days and restriction for 45 days. 3. One negative counseling statement dated 1 February 2013, for a positive urinalysis on 3 January 2013. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149 in lieu of a DD Form 293 requesting a correction of his characterization of service and narrative reason, SPD code and reentry code, his DD Form 214, discharge orders #267-0031, DA Form 4856, DA Form 2627, Article 15, Enlisted Record Brief (ERB) dated 130211, DA Form 268,. POST-SERVICE ACTIVITY: None were 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, the documents 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 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. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a non-commissioned officer. The applicant, as an NCO, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. The applicant’s record of service was marred by one (1) Articles 15 for violations of the Uniform Code of Military Justice and 1 negative counseling statement. 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 that there was no chain of custody for the UA specimen; and, he was not afforded the opportunity to prove the test was incorrect through hair follicle testing or any other means. The applicant's positive urinalysis test was a result of the command’s random urine testing program to maintain good order and discipline within the unit. Such random testing has been upheld by civilian and military courts as lawful and does not violate the US Constitutional protections against unreasonable search and seizure under the Fourth Amendment, self-incrimination under the Fifth Amendment, nor does it violate Article 31 of the Uniform Code of Military Justice. 5. In addition, military orders to produce a urine sample have been upheld in court as both legal and lawful and essential to military discipline. Further, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant’s discharge is commensurate with his overall service record. 6. The applicant request the separation code, reentry code and the narrative reason for separation be corrected. However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, the SPD code, and the RE Code 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, paragraph 14-12c(2), for drug offenses. The regulation further stipulates that no deviation is authorized. 7. The records show the proper discharge and separation authority procedures were followed in this case. 8. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. 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: 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: No Change Characterization to: No Change 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) AR20140000738 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1