IN THE CASE OF: Mr. BOARD DATE: 18 March 2015 CASE NUMBER: AR20140004762 ___________________________________________________________________________ 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 to his discharge from general, under honorable conditions to honorable. 2. The applicant states, in effect, he is not financially able to further his education which, is why he is requesting an upgrade to go back to school and possible receive health care at the nearest VA facility. His medical issues that cannot be treated due to his current discharge and an upgrade would be life changing and appreciative. He understands that his request is not guaranteed due to his prior behavior; however, he insists that the ADRB allow him the opportunity to better himself mentally, as well as physically. His life has changed drastically since his discharge from the service including having the responsibility of caring for his son. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 11 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 9 June 2009 d. Reason/Authority/SPD/RE: Misconduct, (Serious Offense) Chapter 14, AR 635-200, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: Headquarters and Headquarters Detachment 3rd Military Police Group (CID), Fort Gillem, GA f. Current Enlistment Date/Term: 14 July 2008, 4 years, 19 weeks g. Current Enlistment Service: 10 Months, 26 days h. Total Service: 10 Months, 26 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 92Y10, Unit Supply Specialist m. GT Score: 89 n. Education: GED o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 14 July 2008, for a period of 4 years and 19 weeks. He was 21 years old at the time of entry and a high school graduate. He was serving at Fort Gilliem, GA when his discharge was initiated. The record does not contain any evidence of acts of valor or meritorious achievement. He completed 10 months and 26 days of military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 15 May 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, Chapter 14-12c, by reason of misconduct-commission of a serious offense(s). Specifically for: a. knowingly disobeyed a lawful written order, when he failed to register and improperly stored his privately owned weapon (090118), b. wrongfully used marijuana on or about (090205-090306), and, c. admitted to the CID that he wrongfully distributed methamphetamines (ecstasy) (090306). 2. Based on the above pattern of misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 18 May 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in 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 21 May 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 separated on 9 June 2009, under Army Regulation 635-200, Chapter 14-12c, misconduct-commission of a serious offense, with a general, under honorable conditions discharge, an SPD code of JKQ and an RE code 3. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 13 May 2009, for failing to obey a lawful order issued by a Colonel to register his privately owned weapon (090118); and wrongfully used marijuana on or about (090205 and 090306). The punishment consisted of reduction to E-1, forfeiture of $699.00 pay per month for 2 months, extra duty and restriction for 45 days (FG). 2. Three negative counseling statements dated 5 January 2009 thru 5 February 2009, for failing to be at work on time after his lunch break; his personal life interfering with work; and, he failed to be at the 0630 accountability; PT formation and he failed to arrive at work at 0900. 3. Sworn Statement dated, 6 March 2009 indicates the applicant purchased ecstasy drugs at a house party in Riverdale, GA. He purchased more ecstasy drugs at Motions Club in the Atlanta, GA underground; and, he admitted to using marijuana and smoking some with his mother. The applicant was asked would he test positive on a urinalysis. He stated, “yes” he would test positive to the drug he claimed he used (marijuana). 4. Evidence of record contains positive results of a urinalysis test collected on 6 March 2009, coded CO (Command Directed) for marijuana. 5. On 14 May 2009, the applicant received counseling on veteran educational benefits in reference to him not receiving a fully honorable discharge and he will not be receiving any VA educational benefits or refund of monies reduced from his pay for the MGIB which was authenticated by both the applicant and the counselor signatures. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 6 March 2014, and a VA Form 21-4142, dated 6 March 2014. POST-SERVICE ACTIVITY: The applicant did not provide any 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, the documents and the issue 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 serious misconduct, the applicant diminished the quality of his service below that meriting or a fully honorable discharge. 3. The applicant’s service record contains a DD Form 2624 (Specimen Custody Document for Drug Testing) that shows the urinalysis test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty.” The Limited Use Policy applies to this test basis, per AR 600-85. However, the evidence of record contains several sworn statements that indicate the applicant and other Soldiers had wrongfully purchased ecstasy while at a house party and a club. Also, the applicant admitted to smoking marijuana on several occasions and with his mom. This would have given the unit commander probable cause to direct the urinalysis. 4. In view of the aforementioned, it appears the CO code used on the DD Form 2624 was in all likelihood incorrect and should have been coded PO for “Probable Cause” instead of CO for “Competence for Duty.” If this was in fact a harmless error, then the rights of the applicant were not prejudiced by the error on file in this case. The evidence in the record did not create a substantial doubt that the discharge would have been any different if the error had not been made. 5. Moreover, 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. In fact, the applicant admitted to the CID in a sworn statement, dated 6 March 2009 that he brought drugs and resold them at a high price. This is a violation of the Army's policy not to possess or use illegal drugs, which compromised the special 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. The applicant knowingly risked a military career that ultimately caused his discharge from the Army. 6. The applicant contends he wants an upgrade to go to school and receive health care from the VA in order to better his self mentally and physically. Eligibility for veteran's benefits to include medical and educational benefits under the Post 9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The record shows a signed document on 9 May 2009, where the applicant was counseled on veteran educational benefits. It clearly states if the applicant did not receive an honorable discharge he would not be receiving any VA educational benefits. 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: 18 March 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA 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: 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) AR20140004762 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1