IN THE CASE OF:  	 Mr. 

      BOARD DATE:  	2 December 2013

      CASE NUMBER:  	AR20130009666
___________________________________________________________________________

Board Determination and Directed Action

1.  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 that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, notwithstanding the propriety of the applicant's discharge, the Board, on the basis of equity and as approved by the separation authority, voted to change the applicant’s reason for discharge, authority, separation code, and reentry code and directed that a new DD Form 214 be issued reflecting the following changes:

      a. block 25, separation authority changed to AR 635-200, paragraph 14-12c
      b. block 26, separation code changed to JKQ
      c. block 27, reentry code changed to 3
      d. block 28, narrative reason for separation changed to Misconduct (Serious Offense)   

3.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable.



      
      
      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 would like an upgrade of his discharge for the purpose of receiving education benefits.  He contends he was singled out and unjustly discriminated against by one individual.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			1 September 2009
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			7th CM Co, 83rd CM Bn, USAG, Fort Polk, LA
f. Current Enlistment Date/Term:	21 September 2006, 3 years and 25 weeks
g. Current Enlistment Service:	2 years, 11 months, 11 days
h. Total Service:			2 years, 11 months, 11 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	74D10, Chemical Ops Specialist
m. GT Score:				99
n. Education:				GED
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (070604-080518)
q. Decorations/Awards:		ARCOM, ICM-w/CS, NDSM, GWOTSM, ASR, OSR, 						CAB
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 21 September 2006, for a period of 3 years and 25 weeks.  He was 19 years old at the time of entry and had a high school equivalency (GED).  His record indicates he served in Iraq; achieved the rank of SPC/E-4; and received several awards to include an ARCOM and the CAB.  He was serving at Fort Polk, LA when his separation was initiated.  He completed 2 years, 11 months, and 11 days of total military service.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 31 July 2009, 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 the following offenses:

a. receiving a Field Grade Article 15 (090623) for the wrongful use of marijuana
b. receiving a Field Grade Article 15 (081202) for drinking while on duty
c. receiving a counseling (080805) for leaving his place of duty while on CQ
d. receiving a counseling (080806) for sleeping on duty
e. receiving a counseling (080825) for losing his military identification card
f. receiving a counseling (081027) for not wearing the proper protective eyewear
g. receiving a counseling (081124) for driving without a driver's license
h. receiving a counseling (081218) for leaving morning PT early without orders
i. receiving a counseling (090203) for losing his meal card
j. receiving a counseling (090225) for driving with a driver's license
k. receiving a counseling (090226) for not keeping his barrack's room clean
l. receiving a counseling (090226) for keeping an unauthorized visitor in his room
m. receiving a counseling (090306) for being out of uniform
n. receiving a counseling (090306) for driving without a driver's license
o. receiving a counseling (090605) for taking another Soldier's POV without their permission and crashing it on his way back from Wal-Mart

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 4 August 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit 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 applicant was discharged from the Army on 1 September 2009, 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. 





6.  The Transition Center (TC) appropriately selected the SPD code, reentry code and reason for the discharge to execute the commander's intent which in this case was to discharge the applicant for wrongfully using an illegal drug.  Army Regulation 635-5-1 provides the authority for Transition Centers (TC) throughout the Army to execute the commanders’ intent and in this case the TC selected the appropriate reentry code, the SPD Code that identified the type of separation and the correct paragraph from AR 635-200 that corresponded with the reason for the applicant’s separation as described in the discharge packet.

7.  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),       8 May 2009, THC.

2.  Article 15, imposed on 23 June 2009, for the wrongful use of marijuana between (090408 and 090508).  The punishment consisted of forfeiture of $699.00 per month for two months (one month suspended) and extra duty and restriction for 45 days (FG).  The record is void of any other Article 15 documents.

3.  Sixteen negative counseling statements dated between 5 August 2008 and 5 June 2009, for testing positive on a unit drug test 8 May 2009, motor vehicle accident, driving without a driver's license, disobeying a lawful order, improper wear of the uniform, failure to obey, loss of his meal card, leaving his appointed place of duty, three traffic tickets for driving without a driver's license, not wearing protective eyewear, loss of his ID card, sleeping on duty, not being at his appointed place of duty, and being drunk on duty.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

None were provide 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 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 2 Articles 15 for multiple violations of the Uniform Code of Military Justice and 16 negative counseling statements.


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 discriminated against by one individual.  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 unjustly discriminated.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify discharge for misconduct.  The applicant’s statement 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.

5.  Furthermore, 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 expressed his desire for an upgrade of his discharge for the purpose of receiving education benefits.  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.

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:  2 December 2013     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	5	No Change:  0
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct (Serious Offense)
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12c
Change RE Code to:		3
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) JKQ



















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)		AR20130009666



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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