IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 September 2013

      CASE NUMBER:  	AR20130004796
___________________________________________________________________________

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 an upgrade of his discharge from general, under honorable conditions to honorable and a change to the narrative reason for separation.

2.  He states, in effect, he was accused of using steroids which was false, he passed every Army drug test and it was all hearsay.  He was discharged one day prior to his expiration of term of service (ETS) because the chain of command’s actions were below reproach.  His commander and first sergeant were prejudice and unjust because they executed punishment which was never based on facts or justifiable.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			9 September 2011
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			HHC, 4th Brigade Special Troops Battalion (Rear) 						(Provisional), Fort Hood, TX
f. Current Enlistment Date/Term:	13 September 2006, 5 years
g. Current Enlistment Service:	4 years, 11 months, 27days 
h. Total Service:			4 years, 11 months, 27 days
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	31B10, Military Police
m. GT Score:				99
n. Education:				GED Certificate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq x 2 (100912-110609), the other period of combat 						service is not contained in the available record
q. Decorations/Awards:		AAM, AGCM, NDSM, ICM-W/2 CS, GWOTSM, 						ASR, OSR-2, MUC
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 13 September 2006, for a period of 5 years.  He was 18 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 31B10, Military Police.  His record also shows he served two combat tours, earned several awards including an AAM, AGCM and achieved the rank of SPC/E-4.  He was serving in Iraq when his first discharge was initiated and at Fort Hood, TX when his second discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 25 May 2011, 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.  Specifically for the following offenses:

     a.  during a health and welfare inspection of CPL B’s Containerized Housing Unit (CHU), his chain of command found approximately 129 pink pentagon-shape pills, believed to be anabolic steroids (101213)

     b.  CPL S admitting to SA MH (CID), he purchased the pills from the applicant for $250 through an Eagle Cash card transfer (101209)

     c.  an undercover CID source identified him as a steroid distributor

     d.  the undercover source witnessed him selling steroids to multiple Soldiers including PVT M x 2 (101111, 101211)

     e.  PVT M subsequently failing a urinalysis for anabolic steroids

     f.  the applicant receiving a Field Grade Article 15 for the offenses he committed (110516)

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 30 May 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement 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 with a general, under honorable conditions discharge.  

4.  On 5 June 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. However, the separation was suspended until 4 June 2012.

5.  The evidence contained in the applicant’s service record indicates on 2 August 2011, the unit commander formally advised the applicant he was considering vacating the suspension of his Chapter 14 based on his recent misconduct.  Specifically for the following offenses:

     a.  being caught wearing PFC rank (110610)

     b.  making a false official statement that he was a PFC, which statement you knew to be false

     c.  failing to report to accountability formation x 2 (110719, 110721)

6.  In a memorandum dated 25 August 2011, the applicant was afforded the opportunity to consult with legal counsel.  However, the applicant’s election of rights is not contained in the available record and government regularity prevails in the discharge process.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.

7.  The separation authority vacated the suspension of the separation, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

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

9.  The applicant was discharged from the Army on 9 September 2011, 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. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 10 May 2010 for wrongfully distributing over 100 pills of anabolic steroids (101110-101211), while receiving special pay; and violating a lawful general order by distributing anabolic steroids (101110-101211); the punishment consisted of reduction to E-2, forfeiture of $822 pay x 2 months (suspended), extra duty for 45 days and restriction for 45 days, (FG).

2.  He received two negative counseling statements dated 19 July 2011 and 21 July 2011, for failing to report on two separate occasions.

3.  The record of evidence contains a urinalysis report coded PO (Probable Cause), dated       2 January 2011.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293, online application, Memorandum, Request for Retention or Suspension of Separation, two Memoranda, Article 15 Proceedings/Appeal, DA Form 705 (Army Physical Fitness Test Scorecard), Supporting Statement, Letter of Recommendation, six character statements, and a DA form 638 (Recommendation for Award).



POST-SERVICE ACTIVITY: 

The applicant did not provide any 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, 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 was carefully considered.  However, after examining his military record, the issues and documents 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.

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 possession of 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 possessing/abusing illegal drugs, 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 a Field Grade Article 15, two negative counseling statements, and a positive urinalysis.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.

4.  The applicant requested a change in the narrative reason for separation.  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 misconduct (drug abuse).  The regulation further stipulates that no deviation is authorized.  

5.  The applicant contends he was falsely accused of using steroids, and that he passed every Army drug test.  The evidence of record includes a letter from the UCLA Olympic Analytical Laboratory confirming the presence of anabolic steroids in the urine sample evaluated; however the applicant was discharged for distributing anabolic steroids to several Soldiers; a fact that was substantiated by sworn statements and a CID investigation.

6.  The applicant further contends he was discharged one day prior to his expiration of term of service (ETS) because the chain of command’s actions were below reproach.  However, 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 characterization of the applicant’s discharge is commensurate with his overall service record.

7.  The applicant also contends his commander and first sergeant were prejudice and unjust because they executed punishment which was never based on facts or justifiable.  Although the applicant alleges he experienced prejudice and during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.



8.  Additionally, 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 his contention.

9.  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:  11 September 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)		AR20130004796

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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