IN THE CASE OF:  	Mr. 

      BOARD DATE:  	2 May 2014

      CASE NUMBER:  	AR20130015449
___________________________________________________________________________

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

2.  The applicant states through counsel, in effect, he was not guilty of knowingly ingesting marijuana.  He was offered non judicial punishment, he declined and requested trial by court-martial which he never went to trial to present his case and prove his innocence.  He was a good Soldier and was never in much trouble before this incident.  He finds it more difficult to find a decent paying job because of this incident.  He desires to use his GI Bill to attend school and make a better like for his son.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 August 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			21 December 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 								Chapter 14, paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			C Company, 50th Signal Battalion (Expeditionary) 						108th Air Defense Artillery Brigade, Fort Bragg, NC
f. Current Enlistment Date/Term:	23 February 2010, 3 years and 28 weeks
g. Current Enlistment Service:	2 years, 9 months, 29 days 
h. Total Service:			2 years, 9 months, 29 days
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	91B10,Wheeled Vehicle Mechanic
m. GT Score:				101
n. Education:				13 years
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 23 February 2010, for a period of 3 years and 28 weeks.  He was 21 years old at the time of entry and had completed one year of college.  He was trained in and awarded military occupational specialty (MOS) 91B10, Wheeled Vehicle Mechanic.  His record does not contain any evidence of acts of valor or meritorious achievements; and he achieved the rank of SPC/E-4.  He was serving at Fort Bragg, NC when his discharge was initiated.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 23 October 2012, 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 of misconduct-abuse of illegal drugs  for wrongfully using marijuana (120603-120703).

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 23 October 2012, the applicant was afforded the opportunity to consult with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf which is not contained in the available record.  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 27 November 2012, 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 21 December 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), with 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, time lost or actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record did not contain any other relevant information. 

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293, memorandum, request for retention on active duty (two pages), two attorney’s briefs (two pages each), sworn affidavit, author unknown (two pages), and applicant’s statement.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with 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, paragraph 14-12c(2), misconduct.

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




2.  The record confirms 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 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 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 his service mitigated the misconduct or poor duty performance.  

4.  The applicant requested a change to the narrative reason for separation.  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 misconduct (drug abuse).  The regulation further stipulates that no deviation is authorized.  

5.  The applicant contends he was not guilty of knowingly ingesting marijuana.  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 contention.  The applicant provided a sworn affidavit as evidence to support this contention; however, this document did not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided that substantiated he unknowingly ingested marijuana.

6.  The applicant further contends he was offered non judicial punishment; he declined and requested trial by court-martial which he never went to trial to present his case and prove his innocence.  The record of evidence does not contain any action under the UCMJ; although the applicant was offered an Article and he requested trial by court-martial.  Since the Article 15 was not executed; the applicant’s rights were not violated nor was he denied due process.

7.  The applicant also contends he was a good Soldier and was never in much trouble before this incident.  The applicant’s service accomplishments and the quality of his service prior to the incident 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 under review.




8.  Further, although an isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization of service.  The applicant's isolated incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.

9.  The applicant additionally contends he finds it more difficult to find a decent paying job because of this incident.  The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

10.  The applicant desires to use his GI Bill to attend school and make a better like for his son.  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.

11.  Furthermore, 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.

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

13.  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:  2 May 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  2	No Change:  3
Reason Change:	2	No Change:  3
(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)		AR20130015449



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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