IN THE CASE OF: Mr. BOARD DATE: 28 January 2015 CASE NUMBER: AR20140003045 ___________________________________________________________________________ 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. He requests a change to the narrative reason for separation. 2. The applicant states, he was not afforded the opportunity for treatment and saw a counselor only once before he was discharged. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 12 February 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 1 July 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: A Co, 526th Brigade Support Battalion, 2nd Brigade, Fort Campbell, KY f. Current Enlistment Date/Term: 27 October 2007, 6years g. Current Enlistment Service: 1 year, 8 months, 5 days h. Total Service: 7 years, 8 months, 14 days i. Lost time: None j. Previous Discharges: RA (011018-060309)/HD RA (060310-071026)HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 88M10, Motor Transport Operator/25Q10, Multichannel Transmission Systems Operator /Maintainer m. GT Score: 100 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq x 3 (030905-040405), (060611-060915), (071017-081116) q. Decorations/Awards: ARCOM, AAM-4, AGCM-2, NDSM, ICM-W/4CS, GWOTSM, NPDR, ASR, OSR 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 18 January 2001, for a period of 4 years, with a 29 months extension. He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 25Q10, Multichannel Transmission Systems Operator/Maintainer. He reenlisted on 10 March 2006, for a period of 3 years and he was 23 years old at the time. He subsequently trained in and was awarded (MOS) 88M10, Motor Transport Operator. His last reenlistment on 27 October 2007 was for 6 years and he was 24 years old at the time. His record also shows he served three combat tours, earned several awards including an ARCOM, four AAMs and two AGCM; and he achieved the rank of SGT/E-5. He was serving at Fort Campbell, KY when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 9 June 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct-commission of a serious offense for testing positive for cocaine and marijuana (090403). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 11 June 2009, the applicant was afforded the opportunity to consult with legal counsel, received a briefing regarding the administrative separation process and his rights with respect to the same, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, and did not submit a statement on 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 24 June 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was discharged from the Army on 1 July 2009, with a characterization of service of general, under 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 service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Article 15, dated 19 May 2009, for wrongfully using cocaine between (090330-090403); and wrongfully using marijuana between (090303-09040; the punishment consisted of reduction to E-1, forfeiture of $699 pay for two months (suspended), extra duty for 45 days and restriction for 45 days, (FG). 2. An Article 15, dated 3 February 2009, for wrongfully appropriating a M114 Up-Armored HUMMWV, of a value more than $500, property of the US Government (081112); the punishment consisted of a reduction to E-4, forfeiture of $1,109 pay for two months, extra duty for 45 days and restriction for 45 days, (FG). 3. The applicant received four negative counseling statements, dated between 12 November 2008 and 2 June 2009, for larceny, conduct unbecoming a NCO, possession of marijuana, positive urinalysis test and outstanding debt repayment. 4. A positive urinalysis report coded PO (Probable Cause), dated 3 April 2009, for cocaine. 5. A Military Police Report (three pages), dated 2 April 2009, indicating the applicant was under investigation for testing positive for cocaine and possession of marijuana. 6. A DA Form 3822 (Report of Mental Status Evaluation), dated 21 May 2009, indicating the applicant was screened for PTSD and TBI, both screens were negative. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. 7. He received a successful NCOER covering the period from 2 March 2007 through 1 March 2008. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any information with 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. His request for a change to the narrative for his discharge was carefully considered. 2. However, after examining the applicant’s record of service, his military records, the issues and document submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation. 3. 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 Articles 15, four negative counseling statements, a positive urinalysis report and a Military Police Report. 4. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 5. The applicant requested a change to his narrative reason for separation. 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, paragraph 14-12c(2), for the misconduct (drug abuse). The regulation further stipulates that no deviation is authorized. 6. The applicant contends he was not afforded the opportunity for treatment and saw a counselor only once before he was discharged. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention he was not afforded the opportunity for treatment. 7. Further, 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. Also, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. 8. Additionally, 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. 9. The records show the proper discharge and separation authority procedures were followed in this case. 10. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 28 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) AR20140003045 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1