IN THE CASE OF:  	

      BOARD DATE:  	23 October 2013

      CASE NUMBER:  	AR20130007515
___________________________________________________________________________

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.    

2.  The applicant states, in effect, that after his incident he served for one year and never came in front of a board.  He was promoted, deployed with his unit for a year and only found out about being discharged upon his return.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		16 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			4 October 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2) 						JKK, RE-4   
e. Unit of assignment:			C Company, 2nd Battalion, 5th Infantry Regiment, Fort 					Bliss, TX
f. Current Enlistment Date/Term:	2 November 2010, 3 years, 16 weeks
g. Current Enlistment Service:	1 year, 11 months, 3 days
h. Total Service:			1 years, 11 months, 3 days
i. Time Lost:				None
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				100
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Afghanistan (110928-120112)
q. Decorations/Awards:		ARCOM, NDSM, ACM-w/CS, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 2 November 2010, for a period of 3 years and 16.  He was 33 years old at the time of entry and was a high school graduate.  He was serving at Fort Bliss, TX when his discharge was initiated.  His record shows he was awarded an ARCOM.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 4 October 2012, the applicant was discharged under the provisions of Chapter 14, AR 635-200, for misconduct (drug abuse), with a characterization of service of general, under honorable conditions.  The DD Form 214 also shows a Separation Program Designator (SPD) code of JKK and a reentry (RE) code of 4.  

3.  The applicant provided a copy of the commander’s notification letter.  The evidence shows that on 1 August 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-Abuse of Illegal Drugs, for participating in the consumption and/or usage of oxymorphone.

4.  Based on the above misconduct, the unit commander initially recommended an honorable condition discharge and advised the applicant of his rights.  This initial recommendation was then changed to a general under honorable conditions characterization of service after discussion with other leaders in the chain of command.  These are the only documents submitted pertaining to the case separation documents.

5.  The applicant’s available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost.  

6.  On 1 October 2012, HQs, 1st Armored Division, Fort Bliss, TX, Orders Number 275-0017, discharged the applicant from the Army, effective 4 October 2012.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

There are no counseling statements or UCMJ actions in the record.  

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant submitted a DD Form 293, a memorandum from the Department of veterans Affairs, four character reference letters, a copy of an Enlisted Record Brief, a copy of the commander’s notification memorandum, a memorandum from Congressional and Special Actions and case management Division, and a DD Form 214.

POST-SERVICE ACTIVITY: 

None 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.

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 and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  The applicant provided a copy of the unit commander’s notification letter showing he initiated separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct-abuse of illegal drugs, for the applicant participating in the consumption and/or usage of oxymorphone.  This is the only document the applicant submitted pertaining to the case separation documents.

3.  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c(2) by reason of misconduct (drug abuse), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's contends that after his incident he served for one year and never came in front of a board.  He was promoted, deployed with his unit for a year, and only found out about being discharged upon his return.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service or the specific reason for the discharge other than what was stated in the unit commander’s notification letter.   Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

5.  The burden of proof remains with the applicant to provide the appropriate documents or other evidence (i.e. discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet this burden of proof since the evidence is not available in the official record.

6.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

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

Did the Applicant Testify?  No 

Counsel:  None

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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
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 


ADRB Case Report and Directive (cont)		AR20130007515



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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