Applicant Name:  Mr.

Application Receipt Date: None   Prior Review:     Prior Review Date: N/A     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he is requesting an upgrade of his discharge to honorable because he is trying to get a job with a contracting company.  He was convicted of crimes that he did not commit and there was no supporting evidence against him.  He served for over 7 years in the Army and is now 10 credits away from an automotive and business degree.  The military was his life for 7 years and he just wants to come back and feels that he deserves 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: 110714
Discharge Received: 			   Date: 110809   Chapter: 14-12c(2)    AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: B Co, 27th Bde Spt Bn, Mosul, Iraq 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 110712, violation of a lawful General Order by wrongfully using and distributing spice (110201-110517), reduction to E-1, forfeiture of $734 per month for two months, and 45 days of extra duty (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 101211    Current ENL Term: 6 Years  ?????
Current ENL Service: 	00 Yrs, 07 Mos, 29 Days ?????
Total Service:  		06 Yrs, 09 Mos, 19 Days ?????
Previous Discharges: 	RA 041021-060714/HD
                                               RA 060715-081023/HD
                                               RA 080124-101210/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 91M10/Bradley FV Infantryman   GT: 99   EDU: GED   Overseas: SWA   Combat: Three tours to Iraq (051210-061201, 080613-090602 and 100915-110725)
Decorations/Awards: AAM-3, AGCM-2, NDSM, ICM-4, GWOTSM, OSR-3, ASR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: Applicant states he is 10 credits away from an automotive/business degree and has a fullt time job.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 14 July 2011, 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 of misconduct, commission of a serious offense, for specifically between on or about 1 November 2010 and 30 November 2010, he and another Soldier were seen possessing and smoking a small amount of spice; between on or about 1 January 2011 and 31 January 2011, SPC T asked if he had ran out of cigarettes, because he was smoking a pipe and the applicant replied “No, this is what I smoke my spice out of,” or words to that affect; sometime in February 2011 he and now PVT T were seen by his roommate SPC D ordering spice using the internet, and having spice shipped to COS Marez, Iraq.  His conduct was determined to be prejudicial to good order and discipline and the unit commander recommended his discharge from the Army with a characterization of service of general, under honorable conditions.  The applicant was advised of his rights.  
       
       The applicant waived legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an Administrative Separation Board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions 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 separation from the Army with a general, under honorable conditions discharge.  
       
       On 14 July 2011, the separation authority approved the conditional waiver request, 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 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.  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, he knowingly risked a military career and diminished the quality of his service below that meriting a fully honorable discharge.  
       
       The applicant contends that he was convicted of offenses he did not commit and there was no supporting evidence; 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 this 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 convicted of offenses he did not commit.  In fact, the applicant’s Article 15 and the CID investigation (110523) for several incidents of serious misconduct, justify his separation from the Army because drug abuse is incompatible with military service.  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 request for an upgrade of his discharge.   Further, 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.  
       
       The applicant also contends that he served for over 7 years and is trying to find a job or return to military service.  The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during his prior periods of honorable service.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.  At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.   Moreover, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
       
       In view of the foregoing, 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: 6 May 2013      Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel:  Yes [ Redacted ]

Witnesses/Observers: None 

Exhibits Submitted: None

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the analyst's recommendation and rationale, the Board determined the discharge to be proper and equitable and voted to deny relief.








  
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 1    No change 4
(Board member names available upon request)

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

XI.  Certification Signature
Approval Authority:


ARCHIE L. DAVIS III
Colonel, U.S. Army
President, Army Discharge Review Board



JOSEPH M. BYERS
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 AR20120012418
______________________________________________________________________________


Page 3 of 4 pages