Applicant Name:  ?????

Application Receipt Date: 2011/07/11	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant, states in effect, that his service was excellent, he received a CIB for his service in Afghanistan and two ARCOMs, one of which was for valor.  He was a good Soldier without any prior incidents, he never used drugs or alcohol but was charged for possession of drugs for being in the same room with others who were using the substance but he was not in possession of it.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 110125
Discharge Received: 			   Date: 110411   Chapter: 14-12c    AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: C Co, 1st Bn, 501st IN Regiment, Joint Base Elmendorf-Richardson, AK 

Time Lost: 13 days, military confinement (101215-101227)

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): 101215, violated a general order by wrongfully possessing some amount of a prohibited intoxicating substance (100928); confinement for 16 days, reduction to E-3, and forfeiture of $750.00 (SPCM)

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 080206    Current ENL Term: 4 Years  19 weeks
Current ENL Service: 	03 Yrs, 01 Mos, 23Days ?????
Total Service:  		03 Yrs, 01 Mos, 23 Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B1P/Infantryman   GT: 97   EDU: HS Grad   Overseas: Alaska, SWA   Combat: Afghanistan (090310-100301)
Decorations/Awards: ARCOM-V, ARCOM, ACM-CS, NDSM, GWOTSM, ASR, OSR-2, NM, CIB

V.  Post-Discharge Activity
City, State:  East Stroudsburge, PA
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 25 January 2011, 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 misconduct—commission of a serious offense for violating a General Order by wrongfully possessing some amount of spice, a prohibited intoxicating substance, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 26 January 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitation.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  
       
       On 9 February 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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 absence 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.   

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, the issues and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that 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.  By his misconduct the applicant diminished the quality of his service below that meriting a fully honorable discharge.  
       
       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.  
       
       The applicant contends that he had excellent service and received several awards one of which was for valor while in a combat zone.  The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review which included a combat tour to Afghanistan.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.  The applicant’s service was marred by a special court-martial for violating a general order and wrongfully possessing a prohibited intoxicating substance.  
       
       The applicant also contends that he was charged for something he did not do, that he just happened to be in the same room with others who were using the illegal substance.  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 issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly discharged.   In fact, the applicant’s plea agreement contained in the record, dated 9 November 2010, indicates that he pled guilty to the charges in order to avoid a more severe punishment.   The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his contention.  Additionally, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. 
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 12 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: Record of deeds, behavioral health evaluation, CIB request, ARCOM (2), letter from defense counsel, extract of court-martial proceedings.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.  
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board



BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
???



Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110014430
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