IN THE CASE OF: BOARD DATE: 18 May 2015 CASE NUMBER: AR20150004403 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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 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, he was falsely accused of committing a crime, which he did not commit. He was unaware of the drugs found in his vehicle; however, there was a Soldier he picked up on the way back to the base. The Soldier had text messages about drugs on his phone and he was given an honorable discharge. He was falsely punished because he had two years of service left, while the other Soldier had four months left. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 9 March 2015 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 7 September 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: D Co, 3rd Bn, 7th Infantry Regiment, 4th Infantry BCT, Fort Stewart, GA f. Current Enlistment Date/Term: 30 June 2009, 4 years, 17 weeks g. Current Enlistment Service: 3 years, 2 months, 8 days h. Total Service: 3 years, 2 months, 8 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 108 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (100713-110731) q. Decorations/Awards: ARCOM; NDSM; ASR; MUC 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 30 June 2009, for a period of 4 years and 17 weeks. He was 17 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman. He served Iraq. He earned an ARCOM. He completed 3 years, 2 months, and 8 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 8 August 2012 (as acknowledged by the applicant), the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason misconduct – abuse of illegal drugs, specifically for wrongfully possessing ecstasy (120405). 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 8 August 2012, 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 29 August 2012, 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 7 September 2012, 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 a RE code of 4. 6. The applicant’s available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost. However, he was separated as a PFC/E-3 and the action that caused his reduction is not contained in the service record. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Two negative counseling statements, dated 31 May 2012 and 24 July 2012, for failing to obey an order or regulation and possession of narcotics. 2. A civilian police report, dated 5 April 2012, indicates the applicant was the subject of an investigation for speeding and possession of illegal contraband (85 pills in a sandwich bag that tested as MDMA). 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 a SPD Code of "JKK" will be assigned a RE Code of 4. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his service and to change the narrative reason for his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or to change the narrative reason for his 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 negative counseling statements. 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 the discharge was unjust because he did not commit the crime he was accused of. 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 his issues. 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 negative counseling statements 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 contends that another Soldier he was with when drugs were found in the applicant’s vehicle had text messages about drugs on his phone was given an honorable discharge. However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 6. 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. 7. 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: Personal Appearance Date: 18 May 2015 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: Yes DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: Reference Letters (3 pages) 2. The applicant presented no additional contentions. In addition to the evidence in the record, the Board carefully considered the additional documents, and testimony, presented by the applicant at the personal appearance hearing. Board Vote: Character Change: 2 No Change: 3 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: No Change Change RE Code to: No Change 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) AR20150004403 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1