IN THE CASE OF: Mr. BOARD DATE: 13 May 2015 CASE NUMBER: AR20140008487 ___________________________________________________________________________ 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 partial 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. 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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge. 2. The applicant states, in pertinent part and in effect, his discharge was an unjust and horrific process. He was never provided the opportunity to seek proper services that were available to help him with his situation. He did not have an adequate family care plan as a single father at the time and received no help or support. So he turned to smoking marijuana. He was mistreated by his chain of command, including his peers and NCOs because he was a nuisance to them. He was tested back to back instead of being counseled and helped by his chain of command. He was also threatened several times by his peers and NCOs, causing him to be scared and exhausted both mentally and physically. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 12 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 18 June 2009 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: HHC, 296th BSB, 3rd Bde (SBCT), 2nd Infantry Division, Fort Lewis, WA f. Current Enlistment Date/Term: 22 August 2007, 4 years g. Current Enlistment Service: 1 year, 9 months, 27 days h. Total Service: 1 year, 9 months, 27 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 92A10, Automated Logistical Specialist m. GT Score: 90 n. Education: Two years of college o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM; GWOTSM; ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 22 August 2007, for a period of 4 years. He was 23 years old at the time of entry and had two years of college. He was trained in and awarded military occupational specialty (MOS) 92F10, Petroleum Supply Specialist. His record documents no acts of valor or significant achievement. He completed 1 year, 9 months, and 27 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 9 April 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct – use of illegal drugs, specifically for wrongfully using marijuana on two separate occasions (080930-081029 and 090121-090220). 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 20 May 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action 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 9 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 18 June 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), 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. There are two positive urinalysis reports contained in the record: RO, Rehabilitation Testing, dated 20 February 2009, marijuana; IU, Inspection Unit, dated 29 October 2008, marijuana 2. Article 15, dated 26 June 2009, for wrongfully using marijuana (080930-081029). The punishment consisted of a reduction to the grade of E-2 and 7 days of extra duty, (CG). 3. A negative counseling statement, dated 21 November 2008, for testing positive for a controlled substance. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided none. POST-SERVICE ACTIVITY: The applicant provided none. 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, paragraph 14-12c(2), 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. After a careful review of all the applicant’s military records, and the issues 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 20 February 2009, 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. The applicant contends the narrative reason for the discharge should be changed. However, he was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 5. Therefore, the characterization of service being improper, recommend the Board grant 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. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 13 May 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) AR20140008487 Page 5 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1