IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 October 2013

      CASE NUMBER:  	AR20130005017
___________________________________________________________________________

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 general, under honorable conditions discharge to honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, his discharge was inequitable because it was based on one isolated incident.  The applicant contends his discharge was coupled with inaccurate, missing and delayed information.  He states he was not given information on how to consult with legal counsel and received a counseling statement that suggested he obtain counseling for drug treatment.  He contends he received his discharge paperwork two years after being notified of the failed urinalysis test.  The applicant states he served in the Army and Army National Guard and was discharged honorably.  

3.  The applicant would like to note the following achievements:

     a.  He received multiple awards for good conduct, overseas service, and dedication to his unit and the United States.  

     b.  He was deployed to Iraq as a senior scout observer as part of a long range reconnaissance and surveillance team responsible for over 300 successful convoys with loss of life or equipment.

     c.  He was the team leader on a sniper team and part of the Illinois Army National Guard Marksmanship Training Unit.

     d.  His sniper team took first place in the 2007 All Army Sniper Championship, first place in the 2007 All Guard Competition (Team Rifle), and third place in the 2007 All Guard Competition (Team Pistol).  In addition, he received a Certificate of Appreciation for his superior performance.

     e.  He became registered with the National Registry Emergency Medical Technicians and completed the Emergency Medical Technician Program in 2006.

     f.  Since his discharge on 1 August 2008, he has served as an Immigration Enforcement Agent with the Department of Homeland Security Immigration and Customs Enforcement (ICE).

     g.  He graduated with distinguished honors from the Federal Law Enforcement Training Center.

     h.  He was first in his class in firearms and physical training and third in his class in academics.  

     i.  He received three letters outlining his achievements for an distinguished expert marksmanship score in the Practical Pistol Course, outstanding honor graduate and physical fitness graduate from the ICE Detention and Removal Operations Basic Law Enforcement Training Program.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			20 March 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				1 August 2008
d. Reason/Authority/SPD/RE Code:		Misconduct (Abuse of Illegal Drugs), 									NGR 600-200, RE-3
e. Unit of assignment:				HHC, 1st Bn, 178th Inf, Illinois Army National 
Guard, Chicago, IL
f. Current Enlistment Date/Term:		15 September 2003, NIF
g. Current Enlistment Service:		4 years, 10 months, 17 days
h. Total Service:				8 years, 10 months, 17 days
i. Time Lost:					None
j. Previous Discharges:			AD-990915-030914/HD 
   ARNG-030915-031222/NA
   AD-031227-050313/HD
   ARNG-050314-080801/NA
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		11B20, Infantryman
m. GT Score:					113
n. Education:					HS Graduate
o. Overseas Service:				SWA, Korea
p. Combat Service:				Iraq (0402221-050212)
q. Decorations/Awards:			ARCM-2, AAM-2, AGCM, NDSM, KDSM,   ,								ASR, OSR, GWOTEM, GWOTSM; ARCAM-2,								AFRM-M, CIB, PARRIGBD, PRCHTBAD, 
r. Administrative Separation Board: 		NIF
s. Performance Ratings:			NIF
t. Counseling Statements:			NIF
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army National Guard (ARNG) on 15 September 2003.  The applicant’s record was void of the length of service for his current enlistment period.  He was 22 years old at the time of entry and a high school graduate.  He served in Iraq and Korea.  He earned two ARCOMs, two AAMs, AGCM, two ARCAMs, AFRM-M, KDSM, NDSM, GWOTSM, GWOTEM, ASR, OSR, CIB, PARRIGBD, and PRCHTBAD.  He completed 8 years, 10 months, 17 days of service in the ARNG.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The available evidence shows the applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the ARNG State of Illinois and the Reserve of the Army.  

2.  The record indicates that on 11 July 2008, Department of Military Affairs, State of Illinois, Springfield, IL, Orders 193-461, discharged the applicant from the ARNG and a Reserve of the Army, effective 1 August 2008, with a general, under honorable conditions discharge.

3.  The applicant’s record contained a properly constituted NGB Form 22 (Report of Separation and Record of Service), which was not authenticated by the applicant’s signature.  The NGB Form 22 indicates the applicant was released from the National Guard of Illinois and a Reserve of the Army under the provisions of NGR 600-200, paragraph 8-35h by reason of alcohol or other drug abuse rehabilitation failure with a general, under honorable conditions discharge and a RE code of 3.  

4.  On 17 January 2013, The Adjutant General (TAG), ARNG of the State of Illinois, reviewed the applicant’s request for a change in his discharge and denied his request.  However, the TAG indicated that as part of the review of the applicant’s discharge, an error was identified in paragraph 23 of the NGB Form 22, the authority and reason for discharge.  On 16 January 2013, a correction was made on NGB Form 22A to reflect paragraph 6-35i, misconduct-abuse of illegal drugs with an effective date of 22 August 2012.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record provided the following available information:

     a.  Orders 223-04, Department of the Army, Taegu Transition Center, 19th Theater Support Command, APO AP, release from active duty effective 14 September 2003.

     b.  Orders 193-461, Department of Military Affairs, State of Illinois, Springfield, IL, discharge from the Army National Guard and a Reserve of the Army effective 1 August 2008.

     c.  DA Form 2-1 prepared 20 March 2008.

     d.  Enlisted Record Brief, dated 30 June 2003 and 7 August 2003.

     e.  DA Form 639 (Recommendation for Award), dated 13 April 2007.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided the following information in support of his petition:
     a.  DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 25 June 2012.

     b.  A self-authored statement.

     c.  NGB Form 22.

     d.  NGB Form 22A (Correction to NGB Form 22), dated 16 January 2013.

     e.  A letter to the applicant’s counsel, dated 17 January, 2013, from Department of Military Affairs, Springfield, IL, signed by BG K, Illinois ARNG Adjutant General.

     f.  A letter of support from Mr. F stating, in effect, the applicant a very reliable, hard working, conscientious and honest person and is a very valuable asset to the team.

     g.  Two copies of DD Form 214 with dates 990915-030914 and 031227-050313.

     h.  DA Form 638, AAM for Expired Term of Service dated 11 July 2003.

     i.  Certificates from National Registry Emergency Medical Technicians and Wilbur Wright College, Emergency Medical Technician Program. 

     j.  Certificates of Appreciation, dated 2 December 2006 and 22 March 2007.

     k.  DA Form 638, ARCOM for Service, dated 17 September 2004.

     l.  Letters from Mr. K and Mr. B,  dated 3 November 2008, indicating his outstanding performance in the ICE-Detention and Deportation Class and the ICE Detention and Removal Operations Basic Law Enforcement Training Program.

     m.  Certificates of Graduation, dated 3 November 2008, 6 May 2011 and 
16 December 2011.

POST-SERVICE ACTIVITY: 

The applicant states he has served as an Immigration Enforcement Agent with the Department of Homeland Security ICE.  He graduated with distinguished honors from the Federal Law Enforcement Training Center, was first in his class in firearms and physical training and third in his class in academics, received three letters outlining his achievements for an distinguished expert marksmanship score in the Practical Pistol Course, outstanding honor graduate and physical fitness graduate from the ICE Detention and Removal Operations Basic Law Enforcement Training Program.




REGULATORY AUTHORITY:

1.  National Guard Regulation (NGR) 600-200 and Army Regulation 135-178 govern procedures covering enlisted personnel management of the Army National Guard.  Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard.  Paragraph 8-35i (1) of that regulation provides in pertinent part that individuals can be separated for misconduct-abuse of illegal drugs.

2.  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.

3.  NGR 600-200, Chapter 8, Section IX, paragraph 8-34, provides that reentry eligibility codes are determined at separation.  They provide information concerning the Soldier’s service in the ARNG, which will be considered upon future enlistment.  At the time of separation, a Soldier is assigned an appropriate reentry eligibility code.  NGR 600-200, Chapter 8-35i (1), shows that a Soldier discharged for abuse of illegal drugs will be assigned a reentry code of RE 3.

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 record of service, his military records, 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 available record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army National Guard and a Reserve of the Army.  However, the record does contain a properly constituted NGB Form 22 which indicates the applicant was unavailable for signature.  This document identifies the reason and characterization of service.  The NGB Form 22 shows the applicant was discharged by reason of misconduct (abuse of illegal drugs) with a characterization of service general, under honorable conditions.

3.  The applicant contends the incident that caused his discharge was a single isolated incident.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army National Guard and Reserve of the Army, and was prejudicial to good order and discipline.  However, a determination as to the merit of these contentions cannot be made because the facts and circumstances leading to the discharge are unknown.  The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  

4.  Furthermore, the applicant contends two years after the incident he received paperwork indicating he had been discharged with a other than honorable conditions discharge.  The record indicates the applicant’s NGB Form 22 was mailed to his last known address indicating a characterization of service as general, under honorable conditions.

5.  The applicant contends the narrative reason for separation and reentry eligibility code should be changed.  However, the applicant was separated under the provisions of Chapter 6, NGR 600-200, paragraph 6-35i, with a general, under honorable conditions discharge.  The narrative reason specified by the governing regulation for a discharge under this regulation is “Misconduct (Abuse of Illegal Drugs).  NGR 600-200, Enlisted Personnel Management, Appendix F, Table F-1, governs preparation of the NGB Form 22 and indicates the entry of the narrative reason for separation, entered in block 23 will be the authority cited on the discharge order and/or the reason from Chapter 6 and the reentry eligibility code, entered in block 26 of the form, will be the cited reason from paragraph 6-35.

6.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

7.  The applicant’s post-service activity is very commendable; however, he 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.

8.  However, the service record indicates that someone in the discharge process erroneously amended the separation authority from NGR 600-200, paragraph 8-35h, alcohol or other drug abuse rehabilitation failure to NGR 600-200, paragraph 6-35i, misconduct-abuse of illegal drugs.  

9.  Therefore, the characterization of service being both proper and equitable and the presumption of government regularity; recommend the Board deny relief.  However, recommend the Board make the following change to the applicant’s NGB Form 22, block 23, separation authority to NGR 600-200, paragraph 8-35i (1), misconduct-abuse of illegal drugs based on the separation authority in effect at the time of discharge.












SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review     Date:  9 October 2013      Location: Washington, DC

Did the Applicant Testify?  NA

Counsel:  Yes (redacted)

Witnesses/Observers: NA 

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130005017



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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