IN THE CASE OF:  	Mr. 

      BOARD DATE:  	4 June 2014

      CASE NUMBER:  	AR20130014792
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the examiner’s 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 his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, the serious offense he was charged with leading to his court-martial was dismissed.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			12 August 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				6 April 2011
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), Chapter 14-12c,
AR 635-200, JKQ, RE-4
e. Unit of assignment:				Headquarters & Headquarters Company,
Warrant officer Career College, Fort Rucker, AL
f. Current Enlistment Date/Term:		24 September 2007, 3 years, 29 weeks
g. Current Enlistment Service:		3 years, 6 months, 13 days
h. Total Service:				3 years, 6 months, 13 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			SGT/E-5
l. Military Occupational Specialty:		91B20, Wheeled Vehicle Mechanic 
m. GT Score:					113
n. Education:					14 years
o. Overseas Service:				Southwest Asia
p. Combat Service:				Afghanistan (080420-100321)
q. Decorations/Awards:			ARCOM, AAM, NDSM, GWOTSM,
ACM-2 CSS, NATOMDL, ASR
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 24 September 2007, for a period of 3 years and 29 weeks.  He was 23 years old at the time of entry and a high school graduate with some college courses.  He served a combat tour of duty in Afghanistan.  He earned an ARCOM and an AAM and completed 3 years, 6 months, and 13 days of active duty service. 

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 25 March 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, Chapter 14-12c, by reason of misconduct-commission of a serious offense; specifically for:

	a.  investigators from the Enterprise Police Department executed a search warrant at his residence and recovered twenty-three marijuana plants growing in a room and several loose plants in a closet.  They also discovered a surveillance system and other equipment used to cultivate marijuana.  This resulted in his arrest and being charged with drug trafficking and unlawful possession of drug paraphernalia (110225).  

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

3.  On 25 March 2011, 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.   

4.  On 6 April 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 separated on 6 April 2011, under Army Regulation 635-200, Chapter 14-12c, misconduct-commission of a serious offense with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.    

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  One negative counseling statement dated 4 March 2011, for being arrested for possession of drug paraphernalia and trafficking in cannabis. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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. 

ANALYST’S 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 record of service and the issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's 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.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a non-commissioned officer.  The applicant, as an NCO, 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 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 contends the serious offense he was charged with leading to his court-martial was dismissed.  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 court-martial was dismissed. 

5.  The applicant’s statement 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.  Further, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.  

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

7.  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:  Record Review     Date:  4 June 2014      Location:  Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers:  No 

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)		AR20130014792



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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