IN THE CASE OF: Mr. BOARD DATE: 15 December 2014 CASE NUMBER: AR20140016833 ___________________________________________________________________________ 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 CO (Command Directed). This is limited use information as defined in AR 600-85 and is protected evidence because the test cannot be used to determine the applicant’s characterization of service. 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. 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 under other than honorable conditions discharge to honorable or general, under honorable conditions. 2. The applicant states, in effect, he was young and immature at the time of his discharge from the Army. He states he was being blamed for things he never did because he was running with the wrong people. He states his current characterization of service is hampering his everyday life. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 16 September 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 10 December 2001 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: 546th Transportation Company, Fort Bragg, NC f. Current Enlistment Date/Term: 1 February 2000/4 years g. Current Enlistment Service: 1 year, 10 months, 10 days h. Total Service: 1 year, 10 months, 10 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 88M10, Motor Transport Operator m. GT Score: 99 n. Education: GED o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ASR r. Administrative Separation Board: Waived s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 1 February 2000, for a period of 4 years. He was 20 years old at the time of entry and had a General Equivalency Diploma (GED). His record is void of any significant acts of valor or achievement. He completed 1 year, 10 months, and 10 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Bragg, North Carolina. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 1 August 2001, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, for commission of a serious offense. Specifically for receiving a Field Grade (FG) Article 15 for testing positive for cocaine and having his suspended punishment vacated for disobeying a NCO. 2. On 16 October 2001, the unit commander again notified the applicant of initiation of separation action under Army Regulation 635-200, for commission of a serious offense. Specifically for: a. receiving a Field Grade Article 15 for use of cocaine, b. vacation of suspended punishment imposed under non-judicial punishment for disobeying a NCO, c. being accused of assaulting another Soldier in violation of the UCMJ, d. being accused of felony larceny, felony conspiracy, felony possession of stolen goods, and possession of burglary tools in violation of North Carolina statutes. 3. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge. 4. On 1 August 2001, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and elected not submit a statement in his own behalf. On 24 October 2001, the applicant again consulted with legal counsel, and advised of the impact of the discharge action. The applicant unconditionally waived his right to have his case considered by an administrative separation board. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The battalion commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge and the brigade commander recommended approval with an other than honorable conditions discharge. 5. On 30 October 2001, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 6. The applicant was separated on 10 December 2001, under Army Regulation 635-200, Chapter 14-12c, with an under other than honorable conditions discharge, an SPD code of JKQ, and an RE code of 3. 7. The applicant’s record indicates he was confined by civilian authorities from 15 March 2001 to 16 March 2001 and from 14 June 2001 to 21 June 2001. However, his DD Form 214 does not reflect the time lost due to confinement. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 6 March 2001, for wrongful use of cocaine. The punishment consisted of a reduction to the grade of E-1, forfeiture of $521 pay per month for two months (forfeiture in excess of $150 pay per month for two months is suspended), 45 days of extra duty and restriction (FG). 2. Record of Supplementary Action under Article 15, UCMJ, dated 23 March 2001, reflects the applicant’s imposed punishment of forfeiture of $371 pay per month for two months was vacated on 6 March 2001 for disobeying a lawful order from a NCO. 3. There is one positive urinalysis test contained in the record for cocaine. The test was was command directed on 17 January 2001. 4. A memorandum, referring to the notification of ADAPCP requirements for drug/alcohol related incidents, reflects the applicant was referred for initial screening to ADAPCP on 21 February 2001, a rehabilitation team convened on 23 February 2001, and a bar to reenlistment was initiated on 27 March 2001. 5. Two counseling statements, dated 20 March 2001 and 3 April 2001, for approval of a bar to reenlistment and disobeying a NCO. 6. An email, dated 16 April 2001, reflects a military police blotter report, showing the applicant was arrested for assault. 7. Several DA Forms 4187, dated between 15 March 2001 and 26 November 2001, reflect the applicant’s duty status changed from present for duty (PDY) to confinement, from confinement to present for duty, from AWOL to PDY, and from PDY to AWOL. 8. A MP Report, dated 15 April 2001, reflects the applicant was the subject of an investigation for assault. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 7 September 2014, a letter from the Department of Veterans Affairs, dated 22 August 2014, and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any in support of his 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. After a careful review of all the applicant’s military records, the issues and documents submitted with the application, the characterization of service appears to be improper. 2. The record confirms that on 17 January 2001, the applicant was given a command directed urinalysis (CO) and he tested positive for cocaine. On 6 March 2001, the applicant accepted non-judicial punishment for wrongfully using cocaine. His punishment consisted of a reduction to the grade of E-1, forfeiture of $521 pay per month for two months (forfeiture in excess of $150 pay per month for two months is suspended), 45 days of extra duty and restriction. 3. If the test basis for the urinalysis was CO, as stated on the collection sheet, then the Article 15 was improper. There is no indication in the Chapter 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 “CO.” 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 properly coded CO, the Article 15 was improperly based on the limited use evidence, and the discharge was improperly characterized given the introduction of the limited use evidence in the Chapter 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’s 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. The records show the proper discharge and separation procedures were not followed in this case. 6. Therefore, the characterization of service being improper, recommend 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. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 15 December 2014 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) AR20140016833 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1