IN THE CASE OF:  	

      BOARD DATE:  	7 August 2013

      CASE NUMBER:  	AR20130000843
___________________________________________________________________________

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 that his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that he deserves an upgrade of his discharge based on his current values learned while on active duty.  He contends he had not been in trouble prior to the incident of misconduct and that he took full blame and responsibility for his actions.  He states he came back from deployment a different person and was unable to seek any help or counseling because the unit he was assigned too didn't allow him to seek the professional help he needed.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		2 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			22 June 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			526th CS Fwd Spt IN, Fort Campbell, KY
f. Current Enlistment Date/Term:	3 June 2009, 3 years and 23 weeks
g. Current Enlistment Service:	3 years, 20 days
h. Total Service:			3 years, 20 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	92G10, Food Service Specialist
m. GT Score:				96
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (100608-110417)
q. Decorations/Awards:		NDSM, ACM-w/CS, GWOTSM, ASR, OSR 							NATOMDL
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No






SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 3 June 2009, for a period of 3 years and          23 weeks.  He was 19 years old at the time of entry and a high school graduate.  He served a tour of combat duty in Afghanistan and achieved the rank of E-4.  The record does not contain any evidence of acts of valor or meritorious achievements.  He completed 3 years and 20 days of active duty service.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 21 May 2012, 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 (serious offense) for violating a lawful general regulation (111221) by wrongfully possessing and using synthetic cannabinoids.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 23 May 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board which he was not entitled too, and did not submit a statement on 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 with a general, under honorable conditions discharge.  

4.  On 1 June 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 22 June 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, issued on 1 May 2012, for violating a lawful general regulation (111221) by wrongfully possessing and using synthetic cannabinoids.  The punishment consisted of reduction to the grade of E-1, forfeiture of $745.00 per month for two months, and extra duty and restriction for 45 days (FG).


2.  Negative counseling statement, dated 21 December 2011, for being arrested for use and possession of K-2.

3.  CID Report of Investigation, dated 29 December 2011, that indicates the applicant was the subject of an investigation for failure to obey a general order (i.e., suspected synthetic cannabinoids being found on him).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, detailed statement with his account of the events that led to his discharge from the Army, copy of deployment orders, dated 16 April 2010, memorandum, dated 14 January 2012, reference phase II physical examination, copy of DD Form 4856, and pages from MP Report, DD Form 2627, and Article 15 punishment worksheet. 

POST-SERVICE ACTIVITY: 

The applicant states, in effect, that since his discharge he has made changes in his life and no longer participates in any illegal drugs use.

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

2.  The service record confirms 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.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice and a negative counseling statement.

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 contends he had good service as indicated by the receipt of numerous awards and his commitment to his country.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the incident of misconduct.

5.  The applicant contends he experienced issues with Post Traumatic Stress Disorder (PTSD) after returning from deployment which resulted in his experimenting with synthetic cannabinoids.  However, the service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that he suffered from PTSD resulting in his discharge.

6.  The applicant also contends he was not allowed to seek help or counseling.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was not afforded post deployment assistance.  The applicant’s statement alone does not overcome the government’s presumption of regularity.

7.  Furthermore, the record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

8.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  	Date:  7 August 2013          Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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)		AR20130000843



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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