IN THE CASE OF:	Ms. 

      BOARD DATE:	14 May 2014

      CASE NUMBER:	AR20130014030
___________________________________________________________________________

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 her service from general, under honorable conditions to fully honorable, and to change the narrative reason for her discharge.

2.  The applicant states, in effect, her discharge is improper because her prior ASAP enrollment dictates separation in accordance with Chapter 9, AR 635-200.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	29 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	5 April 2013
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	B Co, 63rd Sig Bn (Expeditionary), Fort Gordon, GA
	f.	Current Enlistment Date/Term:	4 April 2011, 5 years, 33 weeks
	g.	Current Enlistment Service:	2 years, 2 days
	h.	Total Service:	2 years, 2 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	25B10, Information Technology (IT) Specialist
	m.	GT Score:	118
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (110502-111209)
	q.	Decorations/Awards:	NDSM; ACM-CS; GWOTSM; ASR; MUC
	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 4 April 2011, for a period of 5 years and 33 weeks.  She was 20 years old at the time of entry and a high school graduate.  She was trained in and awarded military occupational specialty (MOS) 25B10, IT Specialist.  She served in Afghanistan.  Her record documents no other acts of valor or significant achievement.  She completed 2 years and 2 days of active duty service.  She was serving at Fort Gordon, GA when her discharge proceedings were initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 28 February 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 wrongfully using THC, a schedule I controlled substance (121204-130104).

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of her rights.

3.  On 5 March 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on her own behalf (NIF).  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 21 March 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 5 April 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 is a positive urinalysis report contained in the record: IR, Inspection, Random, 4 January 2013, THC.

2.  Article 15, dated 13 February 2013, for wrongfully using THC, a schedule I controlled substance (121204-130104).  The punishment consisted of reduction to the grade of E-1, forfeiture of $758, 45 days of extra duty and restriction, (FG). 

3.  Negative counseling statement, dated 6 February 2013, for testing positive during a random urinalysis.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with her application, a DD Form 214 for service under current review; memorandum for record, dated 8 March 2013, subject: Request for Separation in Accordance with AR 635-200, Chapter 9, rendered by the applicant; DA Form 8003, ASAP Enrollment, dated 3 October 2011, with outpatient treatment plan and review, dated 13 April 2012; memorandum for record, dated 11 February 2013, subject: Acknowledgement of [applicant’s] self enrollment into ASAP, rendered by SSG T (unsigned); ASAP Outpatient Aftercare Plan, dated 30 August 2012; counseling statement, dated 9 February 2013; New Drug Testing Results, dated 5 February 2013; and extract pages of 600-85 (pages 18 and 67) and AR 635-200 (pages 80-81).  

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.

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, Paragraph 14-12c(2), 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.

ANALYST’S DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge and to change the narrative reason for her discharge was carefully considered.  However, after examining the applicant’s record of service, her military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or to change the narrative reason for her discharge.  

2.  The record confirms the applicant’s discharge was appropriate because the quality of her 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 her service below that meriting an honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice.

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 the narrative reason for the discharge should be changed because her discharge was improper—it should have been in accordance with Chapter 9, AR 635-200.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge, as approved by the separation authority.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.

5.  Furthermore, there is also 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 sufficient evidence to support the contention that she may have been unjustly discriminated.  In fact, the applicant’s Article 15 justifies a serious incident of misconduct.  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.  

6.  The applicant’s contentions that her prior ASAP enrollment dictates separation in accordance with Chapter 9, drug rehabilitation failure, was previously considered by the separation authority. Therefore, the rationale she provided as the basis for what she believes was an improper discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.  

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 her overall service record.  Accordingly, 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:  14 May 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)		AR20130014030

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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