IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 December 2013

      CASE NUMBER:  	AR20130009759
___________________________________________________________________________

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 to be 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 characterization from general, under honorable conditions to honorable.  

2.  The applicant states, in effect, that he never had any intentions of being under the influence of anything especially spice.  He documented this prior to his rank being taken.  He had no knowledge that he was smoking spice.  He openly admitted that he thought he had smoked something other than tobacco because he had little control of himself afterwards.  This statement was used against him.  He loved being in the Army and would never have jeopardized his career.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		10 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			4 August 2010
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c, 						JKQ, RE-3        
e. Unit of assignment:			Alpha Company, 307th Brigade Support Battalion, Al 						Asad, Iraq, APO AE, 09333
f. Enlistment Date/Term:		26 December 2009, NIF
g. Current Enlistment Service:	0 years, 7 months, 09 days
h. Total Service:			2 years, 11 months, 15 days
i. Time Lost:				None
j. Previous Discharges:		RA (070820-091225), HD 
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	92A1P, Automated Logistical Specialist
m. GT Score:				94
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (090816-100707)
q. Decorations/Awards:		ARCOM, NDSM, ICM-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 20 August 2007, for a period of 4 years.  He was 21 years old at the time of entry and a high school graduate.  He reenlisted on 26 December 2009 for an unspecified period.  At the time his discharge proceedings were initiated he was serving at Al Asad, Iraq.  His record documents the award of an ARCOM.  


SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 23 June 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct-commission of a serious offense, specifically for failing to obey a lawful general order.  

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 25 June 2010, the applicant consulted with legal counsel, requested an appearance before an administrative separation board (was not entitled to such a board), and did not submit a statement on his 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 of a general, under honorable conditions discharge.  

4.  On 30 June 2010, 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 on 4 August 2010, for misconduct (serious offense), under the provisions of AR 635-200, Chapter 14-12c, with an SPD code of JKQ and a RE code of 3.

6.  The service record does not contain any lost time or AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Field Grade Article 15, dated 17 June 2010, for failing to obey a lawful general order, by wrongfully using or consuming a substance with the intent of improper use to create an impaired state of mind.  His punishment consisted of a reduction to the grade of E-1, forfeiture of pay in the amount of $699.00 for one month, suspended, and 45 days extra duty.  

2.  A counseling statement for using spice (100602) and a sworn statement (100531).
 
EVIDENCE SUBMITTED BY THE APPLICANT 

A DD Form 293 and DD Form 214.

POST-SERVICE ACTIVITY: 

None were listed 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.

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 service record, 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 service 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.  By the serious misconduct, the applicant diminished the quality his service below that meriting an honorable discharge.  The applicant’s record of service was marred by an Article 15 for failing to obey a lawful general order, by wrongfully using or consuming a substance with the intent of improper use to create an impaired state of mind. 

3.   The applicant contends that he never had any intentions of being under the influence of anything especially spice.  He had no knowledge that he was smoking spice.  He openly admitted that he thought he had smoked something other than tobacco because of the loss of self-control.  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 unknowingly used spice.  The applicant’s statements alone do 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.   

4.  The applicant contends he openly admitted that he thought he had smoked something other than tobacco because he had little control of himself afterwards.  This statement was used against him.  He loved being in the Army and would never have jeopardized his career.  However, 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.  

5.  Therefore, based on the presumption of government regularity in the discharge process, the reason for discharge and the characterization of service appear both proper and equitable, thus recommend the Board deny relief. 

6.  Records show the proper discharge and separation authority procedures were followed in this case.

7.  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:  11 December 2013    Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: yes [redacted]

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)		AR20130009759



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1