IN THE CASE OF:  	Mr.

      BOARD DATE:  	28 March 2014

      CASE NUMBER:  	AR20130013555
___________________________________________________________________________

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 general, under honorable conditions discharge to honorable and a change to the narrative reason for separation.

2.  The applicant states, in effect, his discharge was inequitable because it was based solely on one isolated incident in his 29 months of honorable service.  He states he was given no other options and he was reduced in rank and given extra duty.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			22 July 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				27 February 2004
d. Reason/Authority/SPD/RE Code:		Misconduct, AR 635-200, Chapter 14-12c(2),
JKK, RE-4
e. Unit of assignment:				A Troop, 1-11th Armored Cavalry Regiment,
Fort Irwin, CA
f. Current Enlistment Date/Term:		17 September 2001/4 years
g. Current Enlistment Service:		2 years, 5 months, 11 days
h. Total Service:				2 years, 5 months, 11 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		19K10, Armor Crewman
m. GT Score:					114
n. Education:					HS Graduate
o. Overseas Service:				Korea
p. Combat Service:				None
q. Decorations/Awards:			NDSM, ASR, OSR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			No
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 17 September 2001, for a period of 4 years.  He was 21 years old at the time of entry and a high school graduate.  He served in Korea and did not earn any significant awards based on valor or achievement.  He completed 2 years, 5 months, and 11 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Irwin, California.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 17 February 2004, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense) for illegal drug use. Specifically for testing positive for cocaine.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 18 February 2004, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and elected to submit a statement in his own behalf.  The record is void of a statement by the applicant.  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 19 February 2004, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 27 February 2004, under Army Regulation 635-200, Chapter 14-12c(2), with a general, under honorable conditions discharge, an SPD code of JKK, and an RE code of 4.     

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is one positive urinalysis report contained in the record:

     IR, Inspection Random, 28 October 2003, cocaine 

2.  Article 15, dated 3 February 2004, for wrongful use of cocaine.  The punishment consisted of a reduction to the grade of E-3, forfeiture of $748 per month for two months (suspended), 45 days of extra duty and restriction (FG). 

3.  DA Form 3822-R (Report of Mental Status Evaluation), dated 15 December 2003, reflects the applicant had a clear thought process, could distinguish the difference between right and wrong, and was mentally responsible.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 16 July 2013, and a DD Form 214.


POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his 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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of his characterization of service and a change to the reason for 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 a change to the narrative reason for the discharge.    

2.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special 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 that ultimately caused his discharge from the Army.

3.  The applicant contends the discharge was unjust because the discharge was based on one isolated incident.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  Further, 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 Articles 15, positive urinalysis test, and negative counseling statement justify misconduct of a serious nature.  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 the narrative reason for discharge should be changed because the misconduct was a single isolated incident.  However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), for drug offenses.  The regulation further stipulates that no deviation is authorized.  

5.  Therefore, the reason for discharge and the characterization being both proper and equitable, recommend the Board deny relief.














SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  28 March 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

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)		AR20130013555



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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