IN THE CASE OF:  	

      BOARD DATE:  	19 June 2013

      CASE NUMBER:  	AR20130001288
___________________________________________________________________________

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. 

2.  The applicant states, in effect, that his discharge is improper, because it was an isolated incident.  He honorably served many years and through several deployments.  He is a highly decorated Soldier that shows his character.  If his character was of bad moral and ethics, he would not have received the awards.  He is currently 80 percent service-connected disability with 70 percent for PTSD and 10 percent for his back and knees.  He is enrolled in a law enforcement school, but is unable to obtain an employment with a police department or any employment, because of the narrative reason for his separation.  He is trying hard to be a positive influence to help his community by becoming a police officer.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	24 January 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	15 April 2010
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	Heavy Company, 2nd Sqdn, 3rd ACR, Fort Hood, TX
	f.	Current Enlistment Date/Term:	1 October 2008, 6 years
	g.	Current Enlistment Service:	1 year, 6 months, 15 days
	h.	Total Service:	7 years, 9 months, 25 days
	i.	Time Lost:	2 days
	j.	Previous Discharges:	RA (020619-080930) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	63A10 (Abrams Tank System Maintainer)
	m.	GT Score:	109
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq x 3 (071025-090117, 050303-060308
			030401-040401)
	q.	Decorations/Awards:	ARCOM-5; AAM-3; AGCM-2; NDSM; ICM-4CS
			GWOTEM; GWOTSM; NPDR; ASR; OSR-3; CAB; VUA
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 19 June 2002 and reenlisted on 1 October 2008 for a period of 6 years.  He was 19 years old at the time of entry and a high school graduate.  He served three tours in Iraq.  He earned 5 ARCOMs and 3 AAMs, and completed 7 years, 9 months, and 25 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 10 March 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—commission of a serious offense, for wrongfully using methyldioxymethamphetamines (091120-091123).

2.  The unit commander recommended an honorable discharge and advised the applicant of his rights.  In addition, in a memorandum for record, the unit commander presented the reason for his recommendation for an honorable discharge; wherein, the chain-of-command had counseled the applicant that if he waived his right for an Administrative Review Board, and had no further incidents of misconduct, he would be recommended for an honorable discharge, and that to date, the applicant had fulfilled the stated requirements for an honorable discharge. 

3.  On 6 April 2010, the applicant waived consultation with legal counsel, indicated he understood the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and did not submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action.  The battalion commander recommended approval of the separation with an honorable discharge and the brigade commander recommended approval of the separation with a general, under honorable conditions.  

4.  On 7 April 2010, the separation authority approved the administrative separation board waiver request, 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 15 April 2010, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), a Separation Program Designator code (SPD) of JKK and a RE code of 4. 

6.  The applicant’s record of service indicates two days of time lost for being AWOL from 28 December 2009 until his return on 30 December 2009.  Soldier returned to duty.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A positive urinalysis report:  IR, Random Sample inspection, 23 November 2009, MDA (methyldioxymethamphetamines).

2.  Article 15, dated 12 January 2010, wrongfully used methyldioxymethamphetamines (091120-091123), AWOL (091228-091230).  The punishment consisted of reduction to the grade of E-4, forfeiture of $1,114 per month for two months (suspended), (FG). 
3.  Three negative counseling statements, dated between 11 December 2009 and 30 December 2009, for positive urinalysis, revocation of his leave, and AWOL (091228-091230).

4.  An NCOER covering the period: 1 June 2008 to 31 May 2009 (Annual):  The applicant was rated as “Success” and received 1/1 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a character reference letter, undated; a community college letter, dated 10 January 2013, that indicates he is enrolled in a law enforcement academy’s basic and phase II peace officer program; and a VA disability decision letter, dated 15 October 2012.

POST-SERVICE ACTIVITY: 

The applicant provided a community college letter indicating his enrollment in a peace officer program.

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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "JKK" will be assigned a RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for 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 or a change to the narrative reason for his discharge.    

2.  The 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.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a noncommissioned officer.  The applicant, as an NCO, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  

3.  The applicant contends the discharge was improper, because the basis for his discharge was an isolated incident.  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 unjustly discriminated.  In fact, the applicant’s Article 15 and numerous negative counseling statements justify incidents of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge and a change to the narrative reason for his discharge.  Moreover, although an isolated 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.  

4.  The applicant contends that he had good service which included several deployments and was recipient of several awards.  The applicant’s service accomplishments and the quality of his service prior to the incident 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 serious incident of misconduct and by the multiple negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice.

5.  The applicant’s post-service accomplishments have also been noted as outlined on the application and in the document with the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  

6.  The applicant contends the Veterans Administration has granted him a service connected disability for Post-Traumatic Stress Disorder (PTSD) and other medical conditions.  However, the fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing, nor do they overcome the reason for his discharge and characterization of service granted.  The record shows that on 8 February 2010, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  It appears he knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same condition that completed their service successfully.

7.  The applicant contends that a change in the reason for the discharge would allow for an employment with a police department or other employment.  However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), for drug offenses.  The regulation further stipulates that no deviation is authorized.  

8.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned a RE Code of 4.  

9.  Finally, the third party statement provided with the application speaks highly of the applicant’s performance.  The statement rendered recognized his good conduct after leaving the Army; however, the person providing the character reference statement was not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, the statement did not provide any evidence sufficiently compelling to overcome the presumption of regularity.

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



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review	     Date:  19 June 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Board Vote:
Character Change:  2	No Change:  3
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)		AR20130001288



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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