IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 August 2013

      CASE NUMBER:  	AR20130003280
___________________________________________________________________________

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 that 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 and his reentry code.  

2.  The applicant states, in effect, the allegations of unlawful distribution, possession and use of illegal drugs are not supported by any physical evidence.  He passionately denies doing any of these drug related offenses for which he was discharged.  He served for four and half years of excellent service which included a combat tour.  He provides a self-authored statement with his account of the events that led to his discharge from the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		12 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			30 November 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4        
e. Unit of assignment:			247th MP Detachment, Torii Station, Japan
f. Current Enlistment Date/Term:	21 April 2004, 5 years and 8 months
g. Current Enlistment Service:	4 years, 7 months, 10 days
h. Total Service:			4 years, 7 months, 10 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	31B10, Military Police Specialist
m. GT Score:				103
n. Education:				HS Graduate
o. Overseas Service:			Japan, SWA
p. Combat Service:			Iraq (090906-100829)
q. Decorations/Awards:		ARCOM-2, AAM, AGCM, NDSM, ICM-CS, ASR, 						OSR-2, MUC
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
On 21 April 2004, the applicant enlisted in the Regular Army for a period of 5 years (extended by 8 moths).  He was 17 years old at the time of entry and was a high school graduate.  He was serving at Torii Station in Okinawa, Japan when his discharge was initiated.  His record contains several awards including 2 ARCOMs, an AAM, and an AGCM.  He served in Iraq between September 2009 and August 2010.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The service record indicates that on 1 October 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph       14-12c(2), AR 635-200, for misconduct-commission of a serious offense, specifically for:

      a. Wrongful distribution, possession, and use of liquid ecstasy or similar prohibited substances and by doing so, violated a lawful general regulation

      b. Failure to report to his designated place of duty (120611)
      
2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  

3.  On 4 October 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted several character reference statements and matters on his 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 of the separation with a general, under honorable conditions discharge.  

4.  On 20 November 2012, the separation authority having considered the additional matters and character reference statements 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 30 November 2012, for misconduct (drug abuse), under the provisions of AR 635-200, Chapter 14, paragraph 14-12c(2), with an SPD Code of JKK, and a reentry code of 4.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Bar to Reenlistment dated 2 April 2012.

2.  Parts of a CID Report dated 14 May 2012, which indicates the applicant was the subject of an investigation for possession, use, and distribution of illegal drugs.

EVIDENCE SUBMITTED BY THE APPLICANT 

A DD Form 149 and a self-authored statement.


POST-SERVICE ACTIVITY: 

None were provided with the application.

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, paragraph 14-12c(2), for misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an 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 separation and reentry code 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 separation or reentry code.  

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 Soldier.  The applicant, as a Soldier, 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 service below that meriting an honorable discharge.  

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 the charges against him of unlawful distribution, possession and use of illegal drugs were not supported by any physical evidence.  He passionately denies doing any of these drug related offenses for which he was discharged.  He served for four and half years of excellent service which included a combat tour.  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 charged of offenses he did not commit.  In fact, by a preponderance of the evidence, the CID investigation revealed sufficient information which provided the basis for his administrative discharge.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he provided no additional corroborating or supporting documentation with the request for an upgrade of the discharge.   

5.  The applicant also contends that he had excellent service which included a combat tour in Iraq.  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 seriousness of the applicant’s offenses for violations of the Uniform Code of Military Justice.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  

6.  The applicant requested the SPD code and narrative reason for his discharge changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), 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)," and the separation code is "JKK."  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 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.  

7.  The applicant also requested his reentry code changed in order to rejoin the Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE Code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

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

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review  	Date:  23 August 2013	Location: Washington, DC

Did the Applicant Testify?   NA

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:	NA
Change RE Code to:		NA
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)		AR 20130003280

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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