IN THE CASE OF:	Mr. 

      BOARD DATE:	2 December 2013

      CASE NUMBER:	AR20130008958
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and the circumstances surrounding the discharge, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it.  




      
      
      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.  

2.  The applicant states, in effect, during a health and welfare search, an empty bag of the controlled substance, “spice,” was found in the rear passenger side door pocket of his vehicle. However, while on block leave, he left his vehicle with a battle buddy, who was not taking leave. He realizes his act of kindness was a mistake.  The person who left the empty bag did not come forward.  His service prior to the incident was an above average Soldier.  He earned two Army Achievement Medal (AAM) awards for winning separate Soldier of the month boards, and an AAM for assisting and readying the battalion for deployment.  He was awarded an Army Commendation Medal during deployment for being solely responsible for a battalion of over 500 Soldiers’ mails and working to keep the camp livable.  He was promoted to Specialist during deployment and was studying for the promotion board.  After deployment, he graduated from Warrior Leaders’ Course the week before Christmas block leave.  He does not believe his actions could be categorized as “misconduct (serious offense).”  He believes he made a poor decision to trust his battle buddies and it cost him his military career.  With an upgrade, he plans to join a police department and use his Post 9/11 GI Bill to continue his education.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	8 May 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	4 November 2011
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	B Btry, 1st Bn, 377th FA Rgt, Joint Base Lewis-
			McChord, WA
	f.	Current Enlistment Date/Term:	14 May 2008, 5 years, 17 weeks
	g.	Current Enlistment Service:	3 years, 5 months, 21 days
	h.	Total Service:	3 years, 5 months, 21 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	13B10, Cannon Crewmember
	m.	GT Score:	125
	n.	Education:	HS Graduate and some college
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (090723-100617)
	q.	Decorations/Awards:	ARCOM; AAM; NDSM; ICM-CS; GWOTSM; NPDR 
			ASR, OSR; MUC
	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 14 May 2008, for a period of 5 years and 17 weeks.  He was 19 years old at the time of entry and a high school graduate with some college.  He served in Iraq.  His record documents having earned an ARCOM and an AAM; however, he provides two other AAM certificates.  He completed 3 years, 5 months, and 21 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 5 October 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 misconduct (serious offense), specifically for possessing spice, in violation of Article 92, UCMJ.

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 5 and 6 October 2011, the applicant waived consulting with legal counsel, indicated he understood the impact of the discharge action, and did not indicate whether he was submitting 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 13 October 2013, 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 4 November 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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.  Article 15, dated 14 January 2011, for wrongfully possessing spice (110104).  The punishment consisted of reduction to the grade of E-3, forfeiture of $919 per month for two months (suspended), 30 days of extra duty and restriction, (FG). 

2.  Two negative counseling statements, dated 5 January 2011 and 10 January 2011, for having an adverse action flag and separation being initiated.

3.  DA Form 1059, Service School Academic Evaluation Report, dated 24 November 2010, indicates the applicant achieved the course standards of the Warrior Leaders Course.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided three AAM certificates and its recommendations for periods 23 October 2009, 15 December 2010, and 1 May 2009 through 3 June 2009; an ARCOM certificate and its recommendation, dated 16 April 2010; and WLC graduation certificate with its academic report. 

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.

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 documents and issues submitted with the application, there are insufficient 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 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 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 by an Article 15 for violation of the Uniform Code of Military Justice.

3.  The applicant 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.  

4.  The applicant contends the discharge was unjust because the substance found in his vehicle, the basis for his separation, did not belong to him.  However, 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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated.  In fact, the applicant’s Article 15 and the negative counseling statements justify a serious incident of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge.   

5.  The applicant contends that he had good service which included serving in Iraq, and earning an ARCOM and three AAM awards.  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 serious incident of misconduct and the documented action under Article 15 of the Uniform Code of Military Justice.

6.  The applicant has expressed his 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.

7.  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.  

8.  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:  2 December 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	1	No Change:  4
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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)		AR20130008958

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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