IN THE CASE OF: Mr. BOARD DATE: 10 April 2015 CASE NUMBER: AR20140007737 ___________________________________________________________________________ Board Determination and Directed Action 1. 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 characterization was improper. 2. The record shows the government introduced into the discharge packet the results of a biochemical test which was coded RO (Rehabilitation) and that it was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant’s rehabilitation program. Use of this information mandates award of an honorable characterization of service. 3. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was proper and equitable and the Board voted not to change it. This action entails restoration of grade to SPC/E-4. 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 discharge from under other than honorable conditions to honorable. 2. The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being eligible for family housing. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 28 April 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 10 February 2006 d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 635-200, Chapter 10, KFS, RE-4 e. Unit of assignment: E Co, 501st STB, Fort Campbell, KY f. Current Enlistment Date/Term: 5 February 2004, 5 years g. Current Enlistment Service: 3 years, 5 months, 7 days h. Total Service: 3 years, 5 months, 7 days i. Time Lost: None j. Previous Discharges: RA-020904-040204/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92F10, Petroleum Supply Specialist m. GT Score: 102 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (030509-040222 and 050911-051106) q. Decorations/Awards: AGCM, ICM, NDSM, GWOTEM, GWOTSM, ASR, OSR-2 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 4 September 2002, for a period of 2 years. On 5 February 2004, he reenlisted for a period of 5 years. He was 19 years old at the time of reenlistment and a high school graduate. His record indicates he served in Iraq; achieved the rank of SPC/E-4; and earned several awards to include the AGCM. He was serving at Fort Campbell, KY when separation action was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 31 January 2006 the applicant was charged with the wrongful use of marijuana x 2 (051123 and 060124) and for the wrongful endeavor to impede an investigation by placing a cleaning agent into his urine specimen collection bottle in an effort to adulterate his urine sample (060126). 2. On 1 February 2006, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. The applicant indicated he understood he could receive an UOTHC discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did not submit a statement on his own behalf. The applicant's chain of command's recommendation was not in the record, therefore, the presumption of government regularity is presumed in the discharge process. 3. On 3 February 2006, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UOTHC. The applicant was reduced to the lowest enlisted rank. 4. The applicant was discharged from the Army on 10 February 2006, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 5. The applicant’s record of service does not show any record of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There is a positive urinalysis report contained in the record coded; IU (Inspection Unit), 29 November 2005, THC. 2. There is a positive urinalysis report contained in the record coded; RO (Rehabilitation Testing), 12 December 2005, THC. 3. A Military Police Report, dated 29 November 2005, which indicates the applicant was the subject of investigation for driving under the influence, unlawful transaction with a minor in the third degree, leaving the scene of an accident, failure to operate in a careful manner, failure to obey an order/regulation (driving while post privileges were suspended resulting in damage to government property), and consumption of alcohol by minor. 4. Pre-Trial Confinement Order, dated 26 January 2006, for disobeying a superior commissioned officer, disobeying lawful order/regulation, willful destruction of government property, drunk driving, wrongful use of marijuana, wrongful possession of marijuana, and obstruction of justice. 5. Three negative counseling statements dated between 15 December 2005 and 26 January 2006, for awareness of ASAP appointments and obstruction of justice by wrongfully tampering with a urinalysis bottle in an attempt to impede an investigation. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293. POST-SERVICE ACTIVITY: None was provided with the application. REGULATORY AUTHORITY: 1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 2. 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. 3. 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. DISCUSSION AND RECOMMENDATION: 1. After a careful review of all the applicant’s military records, the issue and document submitted with the application, the characterization of service appears to be improper. 2. The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 12 December 2005, which was coded RO (Rehabilitation) and that it was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant’s rehabilitation program. Use of this information mandates award of an honorable characterization of service. 3. The records show the proper discharge and separation procedures were not followed in this case. 4. Therefore, the characterization of service being improper, the analyst recommends the Board grant full relief by upgrading the applicant’s characterization to honorable. However, the reason for the discharge was fully supported by the record and remains both proper and equitable. This action entails restoration of grade to SPC/E-4. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 10 April 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: SPC/E-4 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) AR20140007737 Page 5 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1