IN THE CASE OF:  	Mr. 

      BOARD DATE:  	26 August 2013

      CASE NUMBER:  	AR20130003909
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and considering and the Discussion and Recommendation that follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.  

2.  However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, 27, and 28, contain erroneous entries.  

3.  The Board directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority:
      
      a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, 
      b. block 26, separation code changed to JKQ, 
      c. block 27, reentry code changed to 3
      d. block 28, narrative reason for separation changed to Misconduct (Serious Offense).  





      
      
      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 counsel on behalf of the applicant states, in effect, that the legal bases for the aforementioned request are:  (1) The applicant was not afforded the same procedural due process right provided to Soldiers with more than six years of service—he was denied his due process right to an adversarial hearing prohibited by the Fifth Amendment of the U.S. Constitution and May v. Gray, 708 F. Supp. 716 (E.D.N.C.), and related federal case law.  (2) The “‘stop and search’” of the applicant on 20 April 2012, was without probable cause and the resulting evidence was inadmissible evidence.  (3) The applicant was not advised of his rights prior to being questioned after the “stop and search,” and any statements rendered from the questioning were inadmissible evidence.  (4) The advice provided to the applicant by his military counsel that led to the applicant accepting the nonjudicial punishment and involuntary separation was ineffective assistance of the military counsel.  (5) The applicant’s acceptance of the nonjudicial punishment was not an admission of guilt of the charged offense.  (6) The applicant’s command did not consider any rehabilitation and transfer to determine his potential for rehabilitation according to AR 635-200, paragraphs 1-1b(3), 1-16c.  (7) The involuntary separation for allegedly possessing the substance “‘spice’” constituted impermissible disparate treatment when another Soldier assigned to the same command, also allegedly had possessed the same substance, was allowed to be reassigned with a locally filed letter of reprimand.  The dramatically different disciplinary dispositions constitute “disparate treatment” prohibited by military and federal courts (the counsel cited U.S. v. Garwood, 20 MJ 148, 154 (CMA 1983), U.S. v. Hagen, 25 M.J 78 83 (CMA 1987), and U.S. v. Berrios, 501 F.2d 1207, 12ll (2d Cir. 1974).  (8) The applicant was at the time of alleged offense, 19 years of age and without any record of misconduct while on active duty, and has been and will be significantly prejudiced in seeking employment, and receiving unemployment and VA benefits.  Therefore, pursuant to 10 U.S.C. § 1553, the Board should grant the relief requested in the applicant’s case.  
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	22 February 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	6 October 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 Btry, 1st Bn, 1st ADA Group, Okinawa, Japan
	f.	Current Enlistment Date/Term:	19 July 2011, 3 years
	g.	Current Enlistment Service:	1 year, 2 months, 18 days
	h.	Total Service:	1 year, 2 months, 18 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	14T10, Patriot Operator/Maintenance
	m.	GT Score:	99
	n.	Education:	HS Graduate
	o.	Overseas Service:	Japan
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 19 July 2011, for a period of 3 years.  He was 18 years old at the time of entry and a high school graduate.  He was serving in Japan when he was discharged.  He was trained in and awarded military occupational specialty (MOS) 14T10, Patriot Operator/Maintenance.  His record documents no acts of valor or significant achievement.  He completed 1 year, 2 months, and 18 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 22 August 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), specifically for violating a lawful general order by possessing a cigarette and packet containing synthetic cannabis, which was designed to produce excitement, intoxication, and stupefaction of the central nervous system.

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 23 August 2012, the applicant elected to consult with a civilian legal counsel, indicated he understood the impact of the discharge action, and submitted 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 28 September 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 6 October 2012, 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 an RE code of 4. 

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.  There is a CID Report dated 20 April 2012, that indicates the applicant was the subject of an investigation for possession of a controlled substance.   

2.  Field Grade Article 15 imposed on 18 July 2012, for which the punishment consisted of reduction to the grade of E-1, forfeiture of $745 per month for two months, 45 days of extra duty and restriction.  As indicated in the company commander’s notification of involuntary separation memorandum, the Article 15 is not in the file. 

3.  Secretary of the Army memorandum, dated 10 February 2011, subject: Prohibited Substances (Spice in Variation).

4.  Memorandum, dated 23 May 2012, subject: Submission of Matters by [the applicant’s name and unit], was rendered by CPT B, JA, Chief of Military Justice, with counsel letter, dated 4 September 2012, Re: Reply to Notice of Intent to Recommend Involuntary Separation [applicant’s name and unit] attached.

6.  There is no negative counseling statement in the file.

EVIDENCE SUBMITTED BY THE APPLICANT:

The counsel for the applicant provided a counsel-authored petition, dated 5 November 2012; counsel letter, dated 14 February 2013; ARBA letter to applicant, dated 9 January 2013; Designation of Legal Representative, dated 29 January 2013; Complaint for Declaratory Judgment (8-page), undated; Plaintiff’s Initial Memorandum in Support of Plaintiff’s Complaint, undated; and Affidavit of Service, dated January 2013.  As additional evidence: counsel letter, dated 29 March 2013; VA of NC letter, undated; and VA educational benefits chart.  

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.

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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, for misconduct (serious offense).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3.

6.  The provisions of DoD Instruction 1332.14, Enclosure 5, Paragraphs 2 and 3, and AR 635-200, Chapter 2, Sections I and II, set forth supplementary procedures for administrative separation notifications and administrative boards, and when a Solder has the right to an administrative separation board.

7.  The provisions of DoD Instruction 1332.14, Enclosure 5, Paragraph 3e(5), and AR 635-200, Paragraph 2-11a, state, in effect, that the rules of evidence for courts-martial do not apply in administrative separation proceedings and both provisions set forth applicable standards.  Note also that evidence admissible at an administrative separation board would also be admissible for consideration when there is no right to a board.

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 record of service, his military records, the documents, and the issues submitted with the application, there are insufficient legal or mitigating factors to merit an upgrade of the applicant's 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 a prohibited substance, 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 and prohibited substances policies.  By abusing a prohibited substance, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation(s) of the Uniform Code of Military Justice.

3.  The counsel on behalf of the applicant presented several contentions.  However, in review of the applicant’s record, three contentions (contentions No. 1, 2, and 3) were previously addressed by the counsel on behalf of the applicant to the separating authority at the time of the applicant’s discharge, and a response was provided by the separating authority’s servicing judge advocate.  The servicing judge advocate’s analysis is correct in that the applicant was afforded adequate due process as set forth by governing instructions and regulations, and there was no violation of his Constitutional rights.

4.  The counsel on behalf of the applicant contends ineffective military counsel leading to the applicant accepting nonjudicial punishment and subsequently to his involuntary separation, and his acceptance of the nonjudicial punishment was not an admission of guilt of the charged offense.  However, the record does not contain any indication of ineffective assistance of counsel, and there is no contention that the applicant’s acceptance of nonjudicial punishment constituted an admission of guilt.  

5.  The applicant provided insufficient corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

6.  The counsel on behalf of the applicant contends the command did not consider the rehabilitative requirements of AR 635-200, paragraphs 1-1b(3), 1-16c, to determine his potential for rehabilitation.  However, AR 635-200, paragraph 1-16d(2), states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  

7.  The counsel on behalf of the applicant contends that another Soldier of the same command with similar offense was not discharged or allowed to stay in the Army.  However, the manner in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

8.  The counsel on behalf of the applicant contends the applicant was 19 years of age at the time of his offense and had no record of misconduct while on active duty.  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 serious incident of misconduct and the documented action under Article 15 of the Uniform Code of Military Justice. 

9.  Furthermore, regarding the age of the applicant and perhaps, the contention that he was young and immature at the time of the incident that led to his discharge, the record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  Further, even if the counsel on behalf of the applicant contends the incident that caused his discharge was the only one in his entire Army career, 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.  

10.  The counsel’s request for a change to the reason for his discharge was carefully considered.  Although the applicant is not entitled to the change of reason requested, the service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct (Drug Abuse), authority as AR 635-200, paragraph 14-12c(2), and SPD code of JKK.  However, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct (Serious Offense).

11.  Therefore, the characterization of service being both, proper and equitable, recommend the Board make the following administrative changes:  

   a.  change block 25, separation authority to AR 635-200, paragraph 14-12c
   b.  change block 26, separation code to JKQ
   c.  block 27, reentry code changed to 3
   d.  block 28, narrative reason for separation changed to Misconduct (Serious Offense)

12.  The counsel on behalf of the applicant has expressed the applicant’s desire to have better job opportunities and the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

13.  Conclusively, 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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

14.  Therefore, with the amended reason for discharge as approved by the separation authority and the characterization of service being both proper and equitable, recommend the Board deny relief for an upgrade.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Record Review       Date:  26 August 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  yes [ redacted ]

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)		AR20130003909



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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