IN THE CASE OF:	Mr. 

      BOARD DATE:	9 April 2014

      CASE NUMBER:	AR20130013709
___________________________________________________________________________

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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, he is asking for an upgrade to enable him to file a claim for VA benefits.  He adds, the police report he submitted as evidence, indicates that the drugs found in his vehicle belonged to the passenger in his vehicle.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	22 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	13 June 2013
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	D Co, 782nd BSB, Fort Bragg, NC
	f.	Current Enlistment Date/Term:	14 June 2010, 4 years
	g.	Current Enlistment Service:	3 years
	h.	Total Service:	3 years
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	92A1P, Automated Logistical Specialist
	m.	GT Score:	110
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (120429-120915)
	q.	Decorations/Awards:	ARCOM; AGCM; NDSM; ACM-CS; GWOTSM 
			ASR; NATO MDL
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 14 June 2010, for a period of 4 years.  He was 18 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 92A1P, Automated Logistical Specialist.  He served in Afghanistan.  He earned an ARCOM.  He completed 3 years of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 9 May 2013, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason misconduct – abuse of illegal drugs, specifically for the following offenses:  

	a.	being found in possession of spice during a security check of the parking lot by a military police (130321) and
	b.	using spice that was revealed by a urinalysis conducted for probable cause (130322).

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 9 May 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected to submit a statement on his own behalf, but failed to submit a statement as of 20 May 2013.  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 22 May 2013, 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 13 June 2013, 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), a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

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.  There are no counseling statements or UCMJ actions in the record. 

2.  He was separated as a SPC/E-4 and the action that caused his reduction is not part of his AMHRR.

3.  Orders 56-3126, dated 25 February 2013, indicates the award of parachute duty as hazardous duty and award of “P” as special qualification identifier.

4.  Permanent Order 143-012, dated 23 April 2013, which awarded the applicant an AGCM.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 for service under current review; an MP sworn statement, dated 21 March 2013, rendered by MP C; sworn statement, dated 21 March 2013, rendered by SPC A; and two consent to search forms, dated 21 March 2013, rendered by the applicant and SPC A.  

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 military records, and the documents and issues submitted with the application, there are insufficient mitigating factors which would merit an upgrade of the applicant's discharge.  

2.  The record confirms that the applicant’s quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  As a Soldier, the applicant had the duty to support and abide by the Army's drug policies and by abusing illegal drugs, he knowingly risked a military career and diminished the quality of his 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 requests an upgrade of his characterization to honorable to enable him to file a claim for VA benefits.  However, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for him to receive a GD instead of the normally appropriate UOTHC discharge.  It appears his misconduct diminished his overall record of service below that meriting an honorable discharge.  

5.  Regarding his desire to have VA benefits, 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.

6.  The applicant also contends the discharge was unjust because the police report he submitted as evidence, indicates that the drugs found in his vehicle belonged to the passenger in his vehicle.  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 may have been unjustly discriminated.  In fact, one of the basis for the applicant’s discharge which the commander referred to was the use of spice through a urinalysis conducted subsequent to the findings of spice in the applicant’s vehicle justify the serious incident of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and insufficient corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.  

7.  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.  Accordingly, the available records show the proper discharge and separation authority procedures were followed in this case.  

8.  Therefore, based on the available evidence and the presumption of government regularity it appears the reason for discharge and the characterization of service were both proper and equitable, thus recommend the Board deny relief. 



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  9 April 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)		AR20130013709

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1