IN THE CASE OF: Mr. BOARD DATE: 13 March 2015 CASE NUMBER: AR20140005713 ___________________________________________________________________________ Board Determination and Directed Action 1. After carefully examining the applicant’s record of service during the period of enlistment under review, and notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization was improper. 2. The record shows the government introduced into the discharge packet the results of a biochemical test which was coded CD (Command Directed), the correct code should read “CO.” This is limited use information as defined in AR 600-85 and is protected evidence because the commander has reasonable suspicion that the applicant was using a controlled substance, but did not have probable cause. Use of this information mandates award of an honorable characterization of service. 3. The Board found the narrative reason for discharge was proper and equitable and voted not to change it. 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 other than honorable conditions discharge to honorable. 2. The applicant states, in effect, he is very proud to have served in the Army and cherished his time and lifelong friends. He states, since being discharged from the Army he is now the Vice Commander of American Legion Post 205, Director of American Legion Riders Chapter 205, and a Deputy Sheriff. The applicant did not present any issues of equity or propriety for the Board to consider. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 5 December 2000 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Chapter 14-12c (2), JKK, RE-4 e. Unit of assignment: HHB, 4th Infantry Division Artillery, Fort Hood, TX f. Current Enlistment Date/Term: 8 January 1998/4 years g. Current Enlistment Service: 2 years, 10 months, 23 days h. Total Service: 2 years, 10 months, 23 days i. Time Lost: 5 days j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 93F10, FA Meteorological Crewmember m. GT Score: 111 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ASR r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 8 January 1998, for a period of 4 years. He was 28 years old at the time of entry and a high school graduate. His record is void of any significant acts of valor and achievement. He completed 2 years, 10 months, 23 days of active duty service. When his discharge proceedings were initiated, he was serving in Fort Hood, TX. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 11 October 2000, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically for: a. being apprehended and driving while intoxicated (000819), b. receiving a Article 15, for wrongful use of cocaine (000824), c. receiving a Article 15, for being AWOL, failing to report on two occasions, five counseling statements for missing formation, and drinking and driving on two occasions (000627). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 17 October 2000, 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. 4. On 31 October 2000, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was separated on 5 December 2000, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKK, and an RE code of 4. 6. The applicant's record shows he was AWOL during the period 11 May 2000 through 15 May 2000. His mode of return is unknown. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Seven negative counseling statements, dated between 4 December 1998 and 21 August 2000, for driving under the influence of alcohol, failure to report, failure to obey a lawful order or regulation, and missing formation. 2. Article 15, dated 27 June 2000, for being AWOL from 11 May 2000 until 16 May 2000, and failure to go at the time prescribed to his appointed place of duty on 6 June 2000 and 9 June 2000. The punishment consisted of a reduction to the grade of E-1 (suspended), forfeiture of $502 per month for two months (suspended) and 45 days of extra duty and restriction. 3. Article 15, dated 24 August 2000, for the wrongful use of cocaine. The punishment consisted of forfeiture of $502 pay per month for two months (suspended) and 45 days of extra duty and restriction (FG). 4. DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ), dated 10 July 2000, reflects the punishment imposed against the applicant of 27 June 2000, was vacated for the wrongful use of cocaine. 5. There is one positive urinalysis test in the record coded “CD-Command Directed” on 12 June 2000, for cocaine. As a note, the correct code should have read “CO.” 6. Two DA Forms 4187 (Personnel Action), dated 12 May 2000 and 18 May 2000, reflects the applicant’s duty status changes. 7. MP Report, dated 19 August 2000, reflects the applicant was the subject of an investigation for driving while intoxicated and underage drinking. 8. DA Form 4126-R (Bar to Reenlistment Certificate), dated 17 August 1999, reflects the applicant was barred for further military service. At the time the bar to reenlistment was initiated the applicant had serviced 1 year, 7 months, and 9 days. It was approved on 1 September 1999 and reviewed on 1 December 1999 and 2 March 2000 and remained in effect. 9. GOMOR, dated 26 September 2000, for driving a motor vehicle while intoxicated with a blood alcohol content of .122 percent. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 14 March 2014 and a DD Form 214. POST-SERVICE ACTIVITY: The applicant states he is the Vice Commander of American Legion Post 205, the Director of American Legion Riders Chapter 205, and a part-time deputy sheriff in Sublette, Kansas. 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. After a careful review of all the applicant’s military records, the issues submitted with the application, the characterization of service appears to be improper. 2. The record confirms that on 12 June 2000, the applicant was given a command directed urinalysis (CD) and he tested positive for cocaine. On 24 August 2000, the applicant accepted non-judicial punishment for wrongfully using cocaine based on that urinalysis. His punishment for this offense was a forfeiture of $502 per month for two months (suspended) and 45 days of extra duty and restriction. 3. If the test basis for the urinalysis was CD, as stated on the collection sheet, then the Article 15 was improper. There is no indication in the discharge paperwork that the command recognized that the “Command Directed” urinalysis could not be used as the basis for the Article 15. Further, there is no indication the command believed the urinalysis was improperly coded “CD.” There are also no CID reports or counseling statements that shed any light on the reason the urinalysis was authorized. 4. Therefore, it appears the urinalysis was coded CD, the Article 15 was improper based on the limited use evidence, and the discharge was improperly characterized given the introduction of the limited use evidence in the discharge paperwork. However, the question whether the urinalysis was properly coded is a question of fact for the Army Discharge Review Board to determine given the contrary conclusions that could be drawn by the command treating the urinalysis as though it was not limited use evidence. The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded. 5. In addition, the service record reflects that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, paragraph 14-12c(2), block 26 separation code as "JKK" , and block 28, narrative reason for separation as “Misconduct (Drug Abuse).” 6. The following administrative corrections are recommended as approved by the separation authority: a. block 25, separation authority to AR 635-200, Chapter 14-12c b. block 26, separation code to JKQ c. block 28, reason for separation to Misconduct (Serious Offense) 7. Records show the proper discharge and separation procedures were not followed in this case. 8. Therefore, the characterization of service being improper, recommend the Board grant relief by upgrading the applicant’s characterization to honorable and approve the administrative corrections as noted above. BOARD DETERMINATION AND DIRECTED ACTION 1. After carefully examining the applicant’s record of service during the period of enlistment under review, and notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization was improper. 2. The record shows the government introduced into the discharge packet the results of a biochemical test which was coded CD (Command Directed), the correct code should read “CO.” This is limited use information as defined in AR 600-85 and is protected evidence because the commander has reasonable suspicion that the applicant was using a controlled substance, but did not have probable cause. Use of this information mandates award of an honorable characterization of service. 3. The Board found the narrative reason for discharge was proper and equitable and voted not to change 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: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable 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) AR20140005713 Page 6 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1