IN THE CASE OF: BOARD DATE: 1 July 2014 CASE NUMBER: AR20140003003 ___________________________________________________________________________ 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 and a change to the narrative reason for discharge. 2. The applicant states, in effect, he suffers from mental illnesses and did not receive proper mental health treatment prior to his discharge. He contends he was not given the proper time to rehabilitate through the Army Substance Abuse Program (ASAP) nor was he properly treated for his mental health issues. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 10 February 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 29 September 2010 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200 Chapter 14-12c(2), JKK, RE-4 e. Unit of assignment: Combat Aviation Brigade (Rear)(Provisional) Fort Riley, KS f. Current Enlistment Date/Term: 10 May 2006/4 years, 22 weeks g. Current Enlistment Service: 4 years, 2 months, 28 days h. Total Service: 4 years, 2 months, 28 days i. Time Lost: 50 days j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92F10, Petroleum Supply Specialist m. GT Score: 104 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (070910-081118) q. Decorations/Awards: ARCOM-2, AAM, AGCM, NDSM, GWOTSM ICM-CS, NPDR, ASR, OSR r. Administrative Separation Board: Yes s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 10 May 2006, for a period of 4 years and 22 weeks. He was 23 years old at the time of entry and a high school graduate. He served in Iraq and earned an ARCOM and an AAM. He completed 4 years, 2 months, and 28 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Riley, Kansas. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 25 May 2010, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c(2), misconduct (drug abuse). Specifically, for wrongful use of marijuana on three separate occasions. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge. 3. On 25 May 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and elected to submit a statement on his behalf. However, the record is void of his rebuttal statement. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. On 3 June 2010, the intermediate commanders reviewed the proposed action and recommended disapproval of the applicant’s conditional waiver request and that he be separated with a characterization of service of under other than honorable conditions discharge. 4. On 9 June 2010, the separation authority disapproved the applicant’s conditional waiver and referred his case to a hearing before an administrative separation board. 5. On 9 July 2010, the applicant was notified to appear before an administrative separation board and advised of his rights. 6. On 13 August 2010, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions. 7. On 16 September 2010, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 8. The applicant was separated on 29 September 2010, under Army Regulation 635-200, Chapter 14-12c(2), with a general, under honorable conditions discharge, an SPD code of JKK, and an RE code of 4. 9. The applicant's record shows he was absent without leave (AWOL) during the periods covering 100213-100228, 100314-100318, 100604-100605, and 100831-100927. His mode of return to military control is unknown. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are two positive urinalysis reports contained in the record: IR, Inspection Random, 19 November 2009, marijuana (THC) IR, Inspection Random, 5 February 2010, marijuana (THC) 2. A DD Form 2624 (Specimen Custody Document-Drug Testing), dated 8 April 2010, reflects the applicant participated in a urinalysis test coded as IO. As a note, a memorandum from LTC B, Staff Judge Advocate, reflects the applicant tested positive on this date. There is no other available evidence of a positive urinalysis on 8 April 2010. 3. Article 15, dated 11 February 2010, failure to go at the time prescribed to his appointed place of duty on three occasions (090120, 090629, and 091216), and wrongful use of marijuana. The punishment consisted of a reduction to the grade of E-1, forfeiture of $400 pay, and 45 days (FG). 4. Article 15, dated 18 May 2010, for wrongful use of marijuana. The punishment consisted of forfeiture of $723 pay per month for two months, 45 days of extra duty, and 45 days of restriction (suspended) (FG). 5. Eleven negative counseling statements dated between 12 March 2007 and 19 March 2010, for wrongful use of marijuana and positive urinalysis, failure to report x 4 (090121, 090707, 091207, and 100104), failure to communicate, for being AWOL, throwing sharp objects, failure to return to appointed place of duty, for being late to formation x 2 (070508 and 070512), and standards and conditions of living in the barracks. 6. Summary of Administrative Separation Board Proceedings, dated 27 January 2010, reflects the Board President requested to discuss contested evidence regarding a urinalysis test, dated 8 April 2010. The Board President determined the urinalysis test was limited use evidence and could not be used in the proceedings. Additionally, testimony notes that the applicant was enrolled in ASAP when he went AWOL and restarted the program upon his return. 7. Medical Records from the Atlanta Veterans Administration Medical Center, printed on 27 January 2014, reflects the applicant was diagnosed with Post Traumatic Stress Disorder, a bi-polar disorder, and a severe drug and alcohol abuse disorder. 8. Eight DA Forms 4187 (Personnel Action), dated between 13 February 2010 and 31 August 2010, changing the applicant’s duty status from present for duty (PDY) to AWOL, from AWOL to confined by civilian authorities, from confined by civilian authorities to PDY, from PDY to AWOL, from AWOL to PDY, from PDY to confinement, from confinement to PDY and from PDY to AWOL. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 6 February 2014, a DD Form 214 covering the period of service under review, and a copy of his medical records. 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. 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 and change to the narrative reason 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 Soldier. The applicant, as a Soldier, 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 two Article 15s for multiple violations of the Uniform Code of Military Justice, three positive urinalysis drug testing for marijuana, and 11 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 still suffers from mental illnesses that occurred while he was in the military and he did not receive proper mental health treatment. However, the fact the Veterans Administration (VA) has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. 5. The applicant contends he was not given proper time to rehabilitate through ASAP. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, the record indicates the applicant was enrolled in ASAP but had several absences due to being AWOL. There is no indication that he successfully completed the program. 6. The applicant desires a change in the narrative reason for the discharge. However, Army Regulation 635-5-1 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, paragraph 14-12c(2), for drug offenses. The regulation further stipulates that no deviation is authorized. Further, 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. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 7. The VA diagnosed the applicant with PTSD. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. However, there are many Soldiers with the same condition that completed their service successfully. 8. The administrative separation board President found that limited use information was introduced into the discharge process; however, notwithstanding this error, it appears that the rights of the applicant were not prejudiced by the error on file in this case. Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was prejudicial in nature. The applicant had a record of misconduct and substandard performance of duty with few significant favorable entries in the service record. The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made. 9. The records show the proper discharge and separation authority procedures were followed in this case. 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. 10. 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: 1 July 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None Board Vote: Character Change: 2 No Change: 3 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: No Change Change RE Code to: No Change 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) AR20140003003 Page 8 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1