IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 April 2013

      CASE NUMBER:  	AR20120021010
___________________________________________________________________________

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 an upgrade of his discharge from general, under honorable conditions to honorable and a change to the narrative reason for separation to include the reentry eligibility (RE) code.  

2.  The applicant states, in effect, that his discharge was unjustified; he was denied the right to seek legal counsel for his Article 15 reading.  He requests reinstatement in the Army. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 November 2012
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			8 August 2012
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 	
      JKK, RE-4
e. Unit of assignment:			HHC, 8th AG Command, Schofield Barracks, HI
f. Current Enlistment Date/Term:	7 July 2010, 4 years, 21 weeks 
g. Current Enlistment Service:	2 years, 1 month, 2 days
h. Total Service:			2 years, 1 month, 2 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	42A10, Human Resources Spec
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			Hawaii/Southwest Asia
p. Combat Service:			Kuwait (120315-120423)
q. Decorations/Awards:		NDSM, GWOTSM, ASR, C/ACH
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 7 July 2010, for a period of 4 years, 21 weeks.  He was 18 years old at the time of entry and a high school graduate.  He was serving at Schofield Barracks, HI, when his discharge was initiated.  His record also shows he served a combat tour and earned a C/Ach.






SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s digital signature.  He was discharged as a PVT/E-2.

2.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c(2), for misconduct (drug abuse), with a characterization of service of general, under honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) code of JKK and a reentry (RE) code of 4.  

3.  There is no record of any UCMJ action, although the applicant was discharged as a   PVT/E-2.  The action that reduced him in rank is not in his record.

4.  The applicant’s record does not show any record of unauthorized absences or lost time.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no counseling statements or UCMJ actions in the record.  However, he was discharged as a PVT/E-2; the action that reduced him in rank is not available in his record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, dated 1 November 2012/with a block 6 continuation page; Criminal Records check; two (2) Letters to Congressman, two (2) pages, dated 31 July 2012 and 7 September 2012; Memorandum, Administrative processing for Separation of Soldiers for Alcohol or Other Drug Abuse, four (4) pages, dated 13 March 2012; Handwritten Support Statement by Applicant’s father, dated 4 May 2012; six (6) Supporting Statements, dated 30 April 2012, undated, 25 June 2012, undated, 26 June 2012 and 25 June 2012. 

POST-SERVICE ACTIVITY: 

The applicant did not provide any.

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 available military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.

2.  The DD Form 214 indicates the applicant was discharged under the provisions of     Chapter 14, AR 635-200, paragraph 14-12c(2) by reason of misconduct (drug abuse), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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 requested a change to the narrative reason for separation.  However, the applicant’s discharge was directed under the provisions of Chapter 14, paragraph 14-12c,     AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse),” the separation code is "JKK," and the reentry eligibility (RE) code of “4.”  

5.  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  


6.  The applicant contends his discharge was unjustified; he was denied the right to seek legal counsel for his Article 15 reading.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's contention.  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 contention.

7.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

8.  A review of the available service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

9.  The applicant requests reinstatement in the Army. However, the applicant’s request does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 

10.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service were both proper and equitable, thus recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review        Date:  24 April 2013          Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: NA

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:	N/A
Change RE Code to:		N/A
Grade Restoration to:		N/A
Other:					N/A





























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)		AR20120021010



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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