IN THE CASE OF:  	

      BOARD DATE:  	20 November 2013

      CASE NUMBER:  	AR20130009536
___________________________________________________________________________

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 he was unjustly discharged.  The charges of DUI and unlawful drug paraphernalia that were pending against him were dismissed by the Montgomery County Courts.  He contends his command was aware but would not help correct his issue.  His first sergeant unlawfully took the keys to his vehicle and confined him to the work place with guard, which affected him mentally due to embarrassment in front of his peers.  He also contends he was being discharge under the provisions of Chapter 18 and that he lost between 80 to 90 pounds meeting tape but not the weight requirements.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		16 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			30 May 2012
Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter
      14, paragraph 14-12c, JKQ, RE-3
d. Unit of assignment:			A Btry, 2nd Bn, 320th FAR, Fort Campbell, KY
e. Current Enlistment Date/Term:	24 June 2009, 3 years, 18 weeks
f. Current Enlistment Service:	2 years, 11 months, 7 days
g. Total Service:			2 years, 11 months, 7 days
h. Time Lost:				None
i. Previous Discharges:		None
j. Highest Grade Achieved:		E-4
k. Military Occupational Specialty:	13B10, Cannon Crewmember
l. GT Score:				98
m. Education:				HS Graduate
n. Overseas Service:			Southwest Asia
o. Combat Service:			Afghanistan (100501-110429)
p. Decorations/Awards:		ARCOM, ACM-w/CS, NDSM, GWOTSM, ASR, OSR 						NATO MDL, CAB
q. Administrative Separation Board: 	No
r. Performance Ratings:		None
s. Counseling Statements:		Yes
t. Prior Board Review:			No
SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 24 June 2009, for a period of 3 years and        18 weeks.  He was 17 years old at the time of entry and a high school graduate.  He served in Afghanistan and achieved the rank of SPC/E-4.  His record indicates he earned several awards to include an ARCOM.  He completed a total of 2 years, 11 months, and 7 days of active military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 27 March 2012, 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) for being arrested for DUI, possessing synthetic cannabinoids, and possessing drug paraphernalia on or about 4 February 2012.

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 16 April 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated his intentions to submit a statement on his own behalf, which was not found in the record.  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 17 April 2012, 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 30 May 2012, 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), with 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.  A incident report from the Clarksville, Tennessee Police Department, dated 3 February 2012, which indicates the applicant was incarcerated for driving under the influence of alcohol and was cleared by arrest of drug paraphernalia; and, a Fort Campbell, KY incident report dated 4 February 2012, referencing the applicant’s arrest.   

2.  A General Officer Memorandum of Reprimand dated 15 February 2012, for driving while under the influence of drugs in Tennessee on 3 February 2012.  He was apprehended after the arresting officer observed him passed out behind the steering wheel.

3.  Mental Status Evaluation Report, dated 20 March 2012, which indicates the applicant was diagnosed with ADJ D/O, unspecified psychoactive substance abuse.  The report indicates, the applicant was psychiatrically cleared for Chapter 14-12c consideration per his command and continue with ASAP until final out from Army. 

4.  A counseling statement, dated 11 May 2012, for debt avoidance for Chapter 14-12c.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, copies of Order for the Expungement of Criminal Offender Record, for driving under the influence and unlawful drug paraphernalia, General Sessions Court of Montgomery County, Tennessee documents, for DUI and unlawful drug paraphernalia with judgments of dismissed (Nolle Prosequi), and a memorandum for record, dated    8 May 2012, reference reinstatement of on-post driving privileges. 

POST-SERVICE ACTIVITY: 

None were 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, 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 the incident of misconduct and the administrative reprimand.

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 he was unjustly discharged; the charges that were pending against his were dismissed by the courts.  However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial.  The evidence of record shows the applicant was arrested and received an administrative reprimand for driving under the influence of drugs, being passed out behind the steering wheel of his vehicle, and having several burnt self-rolled cigarettes with synthetic marijuana (Savia/K2).  All are offenses under the Manual for Courts Martial. 

5.  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.  

6.  The applicant also contends he was being discharge under the provisions of Chapter 18.  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 was being considered for separation under the provisions of Chapter 18.
7.  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: 20 November 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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:		No Change
Change RE Code to:			No Change
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)		AR20130009536



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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