IN THE CASE OF:  	

      BOARD DATE:  	24 April 2013

      CASE NUMBER:  	AR20130000156
___________________________________________________________________________

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 to upgrade his characterization of service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge, possibly to restore his rank.

2.  The applicant states, in effect, that there is lack of evidence, insufficient information, and no failed urinalysis.  His defense counsel’s memorandum for record states the Article 15 packet that led to his discharge is legally insufficient.  He has honorable military service and record with top secret clearance, no prior offenses, and no misconduct.  The separation was initiated after the medical evaluation board had begun for PTSD.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	17 December 2012
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	28 November 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	C Company, 2-501st Combat Aviation Brigade, Fort 
			Bliss, TX
	f.	Current Enlistment Date/Term:	24 October 2006, 6 years, 9 months
	g.	Current Enlistment Service:	6 years, 1 month, 5 days
	h.	Total Service:	6 years, 1 month, 5 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	68W (Health Care Specialist)
	m.	GT Score:	116
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq x 2 (070801-080328), (091217-101204)
	q.	Decorations/Awards:	ARCOM; ACM-3; AGCM; NDSM; ICM-3CS 
			GWOTSM; NPDR; ASR; OSR
	r.	Administrative Separation Board: 	NIF
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 24 October 2006 for a period of 6 years and on 8 March 2011, extended his enlistment by 9 months, and served for a total of 6 years, 9 months.  He was 19 years old at the time of entry and a high school graduate.  He served in Iraq.  He earned an ARCOM, and AGCM, and three AAMs.  He completed 6 years, 1 month, and 5 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service 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 digitally authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 28 November 2012, the applicant was discharged under the provisions of Chapter 14, paragraph 14-12(2), AR 635-200, for misconduct (drug abuse), with a characterization of service of general, under honorable conditions.  The DD Form 214 also shows a Separation Program Designator (SPD) code of JKK and a reentry (RE) code of 4.  

3.  He was separated as a SPC/E-4 and the action that caused his reduction is contained in the service record, an Article 15, dated 26 April 2012. 

4.  The service record does not contain any evidence of time lost.

5.  On 21 November 2012, DA, HQ, 1st Armored Division and Fort Bliss, Fort Bliss, TX, Orders Number 326-0105, discharged the applicant from the Army effective 21 November 2012, unless changed or rescinded.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 26 April 2012, for smoking Spice, an action prejudicial to good order and discipline (110704-120312), violation of Article 134, UCMJ.  The punishment consisted of reduction to the grade of E-4, forfeiture of $1,133 (suspended), 45 days of extra duty and oral reprimand, (FG) 

2.  Allied documents to the aforementioned Article 15, consisting of CID Investigation Report and statements.  The applicant was the subject of an investigation for using Spice.

3.  One NCOER covering the period of 1 August 2010 to 15 April 2011.  The applicant was rated as “Among the Best” and received 1/1 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 214 for service under current review; an NCOER; Memorandum for Record, dated 30 April 2012, by defense counsel; letter verifying the applicant’s PTSD treatment, dated 6 November 2012; letter, dated 25 December 2012, by clinical psychologist; letter, dated 29 October 2012, indicating he should be MEB boarded for PTSD; 2 character reference letters.


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.

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 issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The DD Form 214 also 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's contentions about being discharged with insufficient evidence and that he was undergoing a medical evaluation for PTSD and determination for an MEB were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service, and his medical issues.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The available record shows only documentary evidence for his Article 15 proceedings.  The applicant has provided insufficient evidence regarding his discharge proceedings; however, provided a self-authored statement.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

4.  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.

5.  The applicant contends that he had good service which included no previous offense or misconduct.  The applicant’s service accomplishments and the quality of his service were carefully considered.  However, with the available record of a documented action under an Article 15 of the Uniform Code of Military Justice, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.  Moreover, although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

6.  Regarding the applicant’s request to possibly restore his rank due to insufficient evidence, that 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. 

7.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are 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?  No

Counsel:  None

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:		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)		AR20130000156



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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