IN THE CASE OF: Ms. BOARD DATE: 13 March 2015 CASE NUMBER: AR20140005235 ___________________________________________________________________________ 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 improper. The record indicates the evidence (CID Report) used to discharge the applicant indicated she had not committed any illegal offenses or violated any general orders. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable, change to the narrative reason for separation to Secretarial Authority and the reentry code to 1. 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 her general, under honorable conditions discharge to honorable and a change to the narrative reason and reentry code. 2. The applicant states, in effect, she was discharged from the military for possessing Spice while deployed to Afghanistan. She contends, the investigation clearly stated the substance found in her possession was not illegal or a controlled substance. She states, in spite of the fact the substance was legal, she received an Article 15 for failing to obey a lawful order for a crime she was cleared of and discharged despite her greatest efforts. She desires to serve in the military again. She states, she has never used drugs, not then or now. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 20 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 30 May 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Chapter 14-12c (2), JKK, RE-4 e. Unit of assignment: HHC, 92nd Engineer Battalion, Fort Stewart, GA f. Current Enlistment Date/Term: 25 November 2010/4 years g. Current Enlistment Service: 1 year, 6 months, 6 days h. Total Service: 5 years, 2 months, 18 days i. Time Lost: None j. Previous Discharges: DEP, 070302-070724, NA RA, 070725-101124, HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 35F10, Intelligence Analyst m. GT Score: 106 n. Education: HS Graduate o. Overseas Service: SWA, Korea p. Combat Service: Afghanistan (100501-110422) q. Decorations/Awards: AAM, AGCM, NDSM, ACM-2CS, GWOTSM, KDSM, ASR, OSR-2, NATO MDL r. Administrative Separation Board: NA s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 25 July 2007, for a period of 4 years. She was 18 years old at the time of entry and a high school graduate. She reenlisted on 25 November 2010 for a period of 4 years. She served in Korea and Afghanistan and earned an AAM. She completed 5 years, 2 months, 18 days of military service. When her discharge proceedings were initiated, she was serving at Fort Stewart, GA. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 25 April 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c (2). Specifically for: a. violating a lawful general order (110304), and b. wrongful possession of a substance with intention of obtaining an altered state of mind or an unnatural feeling of euphoria, for which she received an Article 15. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 30 April 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and elected to submit a statement in her 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 15 May 2012, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was separated on 30 May 2012, under the provisions 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. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A DA Form 3822 (Report of Mental Status Evaluation), dated 2 April 2012, reflects the applicant had no obvious impairments, could understand the difference between right and wrong, and had no psychiatric diagnosis. She had a negative screening for Post Traumatic Stress Disorder and mild Traumatic Brain Injury. 2. Two negative counseling statements, dated 18 October 2011 and 7 March 2012, for failure to obey a general order by possessing a controlled substance (Spice) on 4 March 2011, and separation counseling under the provisions of AR 635-200, Chapter 14-12c (2). 3. Article 15, dated 6 December 2011, for wrongful possession of a substance with intention of obtaining an altered state of mind or an unnatural feeling of euphoria. The punishment consisted of a reduction to the grade of E-4, forfeiture of $1,115 pay per month for two months, with one month suspended, 45 days of extra duty and 45 days of restriction (suspended). 4. CID Report, dated 14 September 2011, reflects the applicant was the subject of an investigation for wrongful possession of spice, failure to obey a general order and wrongful distribution of spice. The investigation determined the allegations were unfounded when a forensic drug chemistry examination determined the substance the applicant possessed did not contain any controlled substances. 5. A NCOER covering the period of 1 November 2010 through 31 October 2011. The applicant was rated as “Marginal” by her rater. She received a “4/4” rating for “Overall Performance/Overall Potential” from her senior rater. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 293 and DD Form 149, dated 27 February 2014, a DD Form 214, a Report of Mental Status Evaluation, dated 2 April 2012, three statements of support, reinstatement of security clearance memorandum, dated 11 January 2012, two DA Forms 705, dated 24 March 2010 and 25 September 2010, promotion point worksheet, dated 28 September 2010, an Enlisted Record Brief, dated 17 October 2011, Army Good Conduct Medal Certificate, three certificates of training, a LA Wilson Technical Center Nurse Assisting Certificate, Record of Proceedings under Article 15, dated 6 December 2011, CID Report, dated 14 September 2011, and a self-authored statement. POST-SERVICE ACTIVITY: The applicant did not provide any in support of her 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 her discharge was carefully considered. 2. After a careful review of all the applicant’s military records, the issues and documents submitted with the application, the discharge appears to be improper. 3. The evidence of record to include the CID Report, dated 14 September 2011, clearly relates to the incident that led to the applicant’s Article 15 and subsequent discharge was used as the basis for her separation action. The CID Report confirms the substance found in the possession of the applicant was not illegal; therefore, its possession or use could not be deemed illegal. Based on the evidence contained in the separation packet, there was no offense committed. 4. The records show the proper discharge and separation procedures were not followed in this case. 5. Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF." The applicant desires to reenter the military; however, this action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 13 March 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 5 No Change: 0 Reason Change: 5 No Change: 0 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Secretarial Authority Change Authority for Separation: AR 635-200, Chapter 5-3 Change RE Code to: 1 Grade Restoration to: NA Other: Separation Program Designator (SPD) code to JFF 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) AR20140005235 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1