IN THE CASE OF:	Mr. 

      BOARD DATE:	25 June 2014

      CASE NUMBER:	AR20130014434
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, notwithstanding the propriety of the applicant's discharge, the Board voted to change the applicant’s reason for discharge, authority, separation code, and reentry code on the basis of equity due to the circumstances surrounding the discharge; wherein, his due process being violated by not advising him of the specific reason of drug abuse being the basis for his separation.  Accordingly, the Board voted to change the applicant’s reason for discharge, authority, separation code, and reentry code and directed that a new DD Form 214 be issued reflecting the following changes:

	a.	block 25, separation authority changed to AR 635-200, paragraph 14-12c
	b.	block 26, separation code changed to JKQ
	c.	block 27, reentry code changed to 3
	d.	block 28, narrative reason for separation changed to Misconduct (Serious Offense)   

3.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable.






      
      
      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, and to change the narrative reason for his discharge. 

2.  The applicant referenced his attorney-authored brief and states, in effect; his request is based on proprietary and equitable reasons.  Information protected by the limited use policy was considered in determining his character of service.  His meritorious combat service in Afghanistan and earning a CIB, mitigates his misconduct.  The brief, in pertinent part and in effect adds that the applicant was diagnosed with TBI.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	5 August 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	26 March 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	C Co, 2nd Bn, 30th Infantry Regiment, 4th BCT 
			10th Mountain Division (Light Infantry), Fort Polk, LA
	f.	Current Enlistment Date/Term:	8 October 2009, 3 years, 10 weeks
	g.	Current Enlistment Service:	2 years, 5 months, 19 days
	h.	Total Service:	3 years, 11 months, 17 days
	i.	Time Lost:	None
	j.	Previous Discharges:	USAR (080410-080706) / NA
			IADT   (080707-081125) / HD
			USAR (081126-091007) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	NIF
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (101023-111010)
	q.	Decorations/Awards:	AAM; NDSM; ACM-2CS; GWOTSM; ASR; OSR 
			NATO MDL; CIB
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 8 October 2009, for a period of 3 years and 10 weeks, after serving in the U.S. Army Reserve.  He was 22 years old at the time of entry and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  He served in Afghanistan.  He earned an AAM award.  He completed 3 years, 11 months, and 17 days of active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 28 February 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense), specifically for wrongfully committing adultery and failing to report to his appointed place of duty.  

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 29 February 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his own 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 with a general, under honorable conditions discharge.  

4.  On 13 March 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge under the provisions of chapter 14, paragraph 14-12c(2), AR 635-200, with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 26 March 2012, 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.  Article 15, dated 15 February 2012, for failing to go to his appointed place of duty at the prescribed time (120201) and wrongfully sexual intercourse with a woman, not his wife (120131).  The punishment consisted of reduction to the grade of E-1, forfeiture of $745 per month for two months, 45 days of extra duty and restriction, (FG). 

2.  DA Form 3822, Report of Mental Status Evaluation, dated 28 February 2012, indicates, in pertinent part, the applicant was diagnosed with a history of cocaine and marijuana abuse, and referred to his medical record for medical conditions, and that he denied any previous diagnosis of PTSD.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided his counsel-authored brief; DD Form 214 for service under current review; permanent order awarding CIB, dated 9 May 2011; page 3 of DD Form 2807-1, dated 22 February 2012 and health records, dated 22 February 2012 and 20 March 2012; separation authority’s decision memorandum, dated 13 March 2012; unit and battalion commanders memoranda, dated 2 March 2012; Article 15, dated 15 February 2012; 17 ADRB decisions; and pages 70-72 of AR 600-85.

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, 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 the characterization of his discharge and to change the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s record of service, his 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 a change to the narrative reason for his discharge.  

2.  The record confirms that 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 incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violations 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 discharge was improper because information protected under the limited use policy was introduced in his discharge packet, and that he was never disciplined for drug use and any information obtained about his drug use occurred as a result of his voluntary admission and enrollment in ASAP.  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 his discharge was improper due to limited use policy violation.  The applicant’s statements alone do not overcome the government’s presumption of regularity and insufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge.  There is no record of his voluntary admission and subsequent enrollment in ASAP or the documented report of his positive urinalysis for marijuana and cocaine.

5.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., documented evidence regarding his ASAP enrollment and positive results of the urinalysis) or other credible evidence regarding his impropriety contentions, for the Board’s consideration because they are not available in the official record. 

6.  The applicant contends that his combat service and earning a CIB mitigates his subsequent misconduct.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the serious incidents of misconduct or by the documented action under Article 15 of the Uniform Code of Military Justice.

7.  The applicant contends the narrative reason for the discharge should be changed based on impropriety.  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.

8.  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 records show the proper discharge and separation authority procedures were followed in this case.  

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

BOARD DETERMINATION AND DIRECTED ACTION

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, notwithstanding the propriety of the applicant's discharge, the Board voted to change the applicant’s reason for discharge, authority, separation code, and reentry code on the basis of equity due to the circumstances surrounding the discharge; wherein, his due process being violated by not advising him of the specific reason of drug abuse being the basis for his separation.  Accordingly, the Board voted to change the applicant’s reason for discharge, authority, separation code, and reentry code and directed that a new DD Form 214 be issued reflecting the following changes:

	a.	block 25, separation authority changed to AR 635-200, paragraph 14-12c
	b.	block 26, separation code changed to JKQ
	c.	block 27, reentry code changed to 3
	d.	block 28, narrative reason for separation changed to Misconduct (Serious Offense)   

3.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review         Date:  25 June 2014         Location:  Washington, DC

Did the Applicant Testify?  No

Counsel:  Yes [redacted]

Witnesses/Observers:  No

Board Vote:
Character Change:  2	No Change:  3
Reason Change:	5	No Change:  0
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct (Serious Offense)
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12c
Change RE Code to:		3
Grade Restoration to:		NA
Other:  				Separation Program Designator (SPD) JKQ















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)		AR20130014434

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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