Applicant Name:  

Application Receipt Date: 2011/09/15	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he believes his discharged was unfair.  He exclaims that on or about 12 December 2011, two other Soldiers on his team were caught smoking spice—he was their team leader in unit and as the Article 15 proceedings started, they named him to have smoked spice with them.  Although two days prior, he tested negative during a 100% drug test for the unit, they stuck to their story and the 1SG questioned him.  The 1SG informed him that they were sticking to their story and that he was going to do extra duty.  The Soldiers had indicated the times and dates when he smoked with them; however, during one of the times that they pointed out, he was actually at Walmart in Fairbanks with his squad leader and another time they said he was with them, he was at the PX barber shop and he had a receipt.  As a result of the two other times they indicated that he could not account for, he was charged with failure to obey an order to not smoke spice, although all the drug tests he took were negative.  His PT was outstanding and he was a team leader, but when the commander asked him if he wanted to fight it and further informing him that if he opted for a court-martial, there was a chance that he could get a year in military prison if found guilty.  The commander then advised him to take the under honorable discharge and to return—the commander told him that he had to confess to smoking spice exactly as they said he did.  He states that he was forced to make a false confession to prevent being tried by a court-martial.  He states he made the confession because of his family at home—they could not deal with that and quite honestly, the thought of military prison scared him.  He states further that the commander told him that he was a great Soldier and that he is sorry this is happening.  He concludes that he is writing to the Board, hoping to have his discharge changed so he can reenlist and return to being a Soldier—it is the only thing he has ever been good at and hopes to make it a career.

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: 110112
Discharge Received: 			   Date: 110202   Chapter: 14-12c    AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: A Co, 3rd Bn, 21st Infantry Regiment, 1st SBCT, 25th ID, Fort Wainwright, AK 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 101215, violated a lawful general order, to wit: CG Policy #0-21, dated 29 April 2010, by wrongfully smoking the substance Spice on diverse occasions - reduced to E-1; forfeiture of $723 x 2 months, 45-day extra duty/restriction, (FG)

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 100414    Current ENL Term: 3 Years  16 Weeks
Current ENL Service: 	00 Yrs, 09 Mos, 19 Days ?????
Total Service:  		01 Yrs, 00 Mos, 19 Days ?????
Previous Discharges: 	ARNG (090521-090820) / UNC
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 11B (Infantryman)   GT: 105   EDU: HS Grad   Overseas: Alaska   Combat: None
Decorations/Awards: NDSM; GWOTSM; ASR
V.  Post-Discharge Activity
City, State:  
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 10 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—for violating a lawful general order, to wit: CG Policy #0-21, dated 29 April 2010, by wrongfully smoking the substance Spice on diverse occasions, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 12 January 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in 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 of the separation with a general, under honorable conditions discharge.  
       
       On 13 January 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, and the issue and documents submitted with the application, the analyst found no mitigating factors which would merit a change to 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 the misconduct, the applicant diminished the quality of the former Soldier’s 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 was unfairly discharged.  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 presenting substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence or documentation to support the contention that he was unjustly discharged.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case.  The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
       
       The analyst noted the applicant's issues about his desire to rejoin the Service.  At the time of discharge he was appropriately assigned a reentry eligibility (RE) code of “3.”  If reenlistment is desired, the applicant should contact the local recruiter to determine eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 
       
       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: 21 March 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Online application, dated 21 September 2011.

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 AR20110018667
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