IN THE CASE OF:  	Mr. 

      BOARD DATE:  	16 October 2013

      CASE NUMBER:  	AR20130007468
___________________________________________________________________________

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 his narrative reason for discharge.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to attend school and that he was unjustly discharged for something he didn't do.  He contends his entire command thought he was not one to do drugs.  He only tested positive for drugs once and that he tested prior to that test and tested negative.  He went through an entire medical board that was approved.  He was on ADHD and depression medication and doesn’t know if that cause him to have a false positive result.  He also contends he served three years of a four year enlistment; wanted to deploy but was in a non deployable status as a result of randomly passing out.  He believes he was dealt a bad hand.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		15 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			6 August 2012
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, 63d Expeditionary Signal Bn, 35th SB (TT), Fort 					Gordon, GA
f. Current Enlistment Date/Term:	7 July 2009, 4 years
g. Current Enlistment Service:	3 years, 1 month, 0 days
h. Total Service:			3 years, 1 month, 0 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	25S10, SATCOM Sys Op/Maint
m. GT Score:				118
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No



SUMM6ARY OF SERVICE:		

The applicant enlisted in the Regular Army on 7 July 2009, for a period of 4 years.  He was    18 years old at the time of entry and a high school graduate.  He was serving at Fort Gordon, GA when separation action was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  He completed 3 years and 1 month of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 12 March 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, by reason misconduct (serious offense), by wrongfully using Oxymorphone between (111217 and 120117).

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 22 June 2012, the applicant consulted with legal counsel, was advised of 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.  The separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The record contains memoranda, dated 14 May 2012 and 16 May 2012, from the applicant's chain of command recommending the applicant be processed under AR 635-200, paragraph 14-12c, commission of a serious offense based on the serious nature of his offense which was not related to the medial condition for which the service member was being processed through the PEB; SM's misconduct should be considered over any medical issues; he made this choice and should not be rewarded for them.

6.  Records shows that the Commander, HQ, US Army Signal Center of Excellence, Fort Gordon, GA, in accordance with AR 635-200, paragraph 1-33, 6 Jun 05/RAR 6 Sep 11, having received and reviewed the administrative separation packet, Medical Evaluation Board proceedings, and Physical Evaluation Board proceedings pertaining to the applicant to determine whether he should be processed under administrative separation provisions of AR 635-200, Chapter 14, or processed through the physical disability system under the provisions of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation, 8 Feb 06; determined that the medical condition outlined in the Medical Evaluation Board Report was not the direct or substantial contributing cause of the conduct that led to the applicant's recommendation for administrative elimination, and that there were no other circumstances of this individual case that warrant disability processing instead of further processing for administrative separation.  Therefore, he directed that the applicant's be processed under administrative separation provision of AR 635-200, paragraph 14-12c.

7.  The applicant was discharged from the Army on 6 August 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), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

8.  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 positive urinalysis report contained in the record coded; IU (Inspection Unit),       17 January 2012, Oxymorphone.

2.  Article 15, imposed on 8 March 2012, for the wrongful use of Oxymorphone between (111217 and 120117).  The punishment consisted of reduction to the grade of E-2, forfeiture of $836.00 per month for one month (suspended), and extra duty for 45 days (FG). 

3.  Three negative counseling’s dated 5 March 2012, for testing positive for Oxymorphone.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, and two letters from the Department of Veterans Affairs, dated 15 December 2012, showing his period of service and establishing his Veteran's preference for civil service employment.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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 his narrative reason for separation 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 record confirms that 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.  By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice and three negative counseling statements.

3.  Furthermore, about the applicant's request to change his narrative reason for separation.  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.  

4.  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 incident of misconduct or by the multiple negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice.

5. The applicant contends he was unjustly discharged for something he didn't do.  The applicant's positive urinalysis test was a result of the command’s random urine testing program to maintain good order and discipline within the unit.  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.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention he was unjustly discharged.  The applicant’s statements alone does 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.   

6.  The applicant also contends that his command thought his testing positive for drugs was a mistake.  However, the evidence of record shows that the applicant's entire chain of command recommended he be discharged; no recommendation was made to retain the applicant in the military.

7.  The independent documents submitted by the applicant from the Department of Veterans Affairs were noted indicating the applicant was honorably discharged from the US Armed Forces having served during 7 July 2009 to 6 August 2012.  However, a DD Form 214 contained in the record showed the applicant was discharged on 6 August 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), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

8.  The applicant expressed his desire for an upgrade of his discharge for the purpose of going to school.  However, 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.

9.  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.

10.  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:  16 October 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)		AR20130007468



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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