IN THE CASE OF:  	

      BOARD DATE:  	4 September 2013

      CASE NUMBER:  	AR20130012307
___________________________________________________________________________

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 that 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, he was discharged for testing positive for cocaine but denies ever taking it.  He was taking a codeine based prescribed medication and unsuccessfully fought the charge.  All he wanted to do was to serve his country and be all he could be to his family.  Every time he applies for benefits he is reminded of this unfair discharge.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 July 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			7 March 2011
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2) 						JKK, RE-4        
e. Unit of assignment:			A Co, 725th Bde Support Battalion, Joint Base 							Elmendorf-Richardson, AK
f. Current Enlistment Date/Term:	29 May 2008, 3 years and 18 weeks
g. Current Enlistment Service:	2 years, 9 months, 9 days
h. Total Service:			2 years, 9 months, 9 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:				101
n. Education:				HS Equivalency
o. Overseas Service:			Alaska, SWA
p. Combat Service:			Afghanistan (090310-100308)
q. Decorations/Awards:		ARCOM, NDSM, ACM-CS, GWOTSM, ASR, OSR 						NATO MDL, CAB
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
On 29 May 2008, the applicant enlisted in the Regular Army for a period of 3 years and 18 weeks.  He was 18 years old at the time of entry and had a high school equivalency.  He was serving at Joint Base Elmendorf-Richardson, AK when his discharge was initiated.  His record contains several awards including an ARCOM and a CAB.  He served in Afghanistan between March of 2009 and March 2010.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The service record indicates that on 13 January 2011, 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; specifically for wrongfully using cocaine.

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 19 January 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated he would submit a statement on his behalf  (NIF).  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 27 January 2011, 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 7 March 2011, for misconduct (drug abuse), under the provisions of AR 635-200, Chapter 14-12c(2), with an SPD Code of JKK, and a reentry code of 4.

6.  The service record does not contain any evidence of time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Field Grade Article 15, imposed on 3 January 2011, for wrongfully using cocaine (101113-101116).  His punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $723.00 per month for 2 months, and 45 days of extra duty and restriction.

2.  A positive urinalysis dated 16 November 2010, coded as IR (Inspection Random), for cocaine.

EVIDENCE SUBMITTED BY THE APPLICANT 

DD Form 293.

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 service record 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 service below that meriting an honorable discharge.  .

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 that he was taking a codeine based prescribed medication and unsuccessfully fought the charge.  All he wanted to do was to serve his country and be all he could be to his family.  Every time he applies for benefits he is reminded of this unfair discharge.  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 charged of offenses he did not commit.  In fact, a properly administered urinalysis revealed he was positive for cocaine and the command appropriately initiated discharge proceedings.   The applicant’s statements alone do not overcome the government’s presumption of regularity and he provided no additional corroborating or supporting documentation with the request for an upgrade of the discharge.   

5.  Moreover, 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.  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.  Therefore, the reason for discharge, reentry code, and the characterization of service being all proper and equitable, recommend the Board deny relief. 



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  4 September 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 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 Conditions
ADRB Case Report and Directive (cont)		AR 20130012307

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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