IN THE CASE OF: Mr. BOARD DATE: 15 November 2013 CASE NUMBER: AR20130008515 ___________________________________________________________________________ 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 both proper and equitable and voted to deny relief. 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 his characterization of service from general, under honorable conditions to fully honorable. 2. The applicant states, in effect, he was promised that if he finished his Article 15 punishment, he would stay in the Army. He loved, misses, and respects the Army. He works for the post office and he is trying to return to working for the government. He was a good Soldier who made one bad mistake, which he learned from and wishes he could take it back. He was going through a lot at the time. He does not want to make excuses, but one thing is that he is a better man. The Army was the best thing that ever happened to him. It taught him so much. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 6 May 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 15 August 2005 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: 159th Transportation Battalion, 7th Transportation Group, Fort Story, VA f. Current Enlistment Date/Term: 1 July 2003, 3 years g. Current Enlistment Service: 2 years, 1 months, 15 days h. Total Service: 4 years, 7 months, 6 days i. Time Lost: None j. Previous Discharges: RA (010110-030630) / HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 63B10, Light Wheeled Vehicle Mechanic m. GT Score: 88 n. Education: HS Graduate o. Overseas Service: Korea p. Combat Service: None q. Decorations/Awards: NDSM; GWOTSM; ASR; OSR 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 10 January 2001, and reenlisted on 1 July 2003, for a period of 3 years. He was 19 years old at the time of entry and a high school graduate. His record documents no acts of valor or significant achievement. He completed 4 years, 7 months, and 6 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 29 June 2005, 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 of commission of a serious offense, for wrongfully using marijuana (050123-050222). 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 30 June 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected to submit a statement on his own behalf (NIF). 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 July 2005, 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 15 August 2005, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 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 is a positive urinalysis report contained in the record: IU, Inspection Unit, 22 February 2005, marijuana. 2. Article 15, dated 10 May 2005, for wrongfully using marijuana from (050123-050222). The punishment consisted of reduction to the grade of E-3, forfeiture of $820 per month for two months (suspended), 45 days of extra duty, (FG). 3. A negative counseling statement, dated 5 April 2005, for having a positive urinalysis. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided discharge orders and an ERB. POST-SERVICE ACTIVITY: The applicant states, in effect, he is working for the post office. 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. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, and the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice and a negative counseling statement. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. 4. The applicant contends he was promised retention in the Army after serving his Article 15 punishment. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated. In fact, the applicant’s Article 15 and negative counseling statement justify a serious incident of misconduct. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 5. The applicant also contends that an upgrade of his discharge will allow him to obtain an employment with the government. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 6. The applicant contends that he was having issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 7. The applicant contends the incident that caused his discharge was the only one in his entire Army career. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 8. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant’s discharge is commensurate with his overall service record. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case. 9. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 15 November 2013 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 0 No Change: 5 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: No Change Characterization to: No Change 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) AR20130008515 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1