IN THE CASE OF: 	Mr. 

      BOARD DATE: 	7 April 2014

      CASE NUMBER: 	AR20130021526
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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, and to change the narrative reason for his discharge.

2.  The applicant states, in effect, his request is based on the way his situation was handled.  For several months after the death of his mother, he requested help from his chain of command but was told they could not do anything for him.  They told him to suck it up and get back on the ammunition missions as the battalion ammo NCO.  He clearly explained he was not doing well mentally—all of his requests for help fell on deaf ears.  He finally went to the extremes by failing a urinalysis for THC.  They decided he needed help but by then, it was too late.  It is unjust that he received a GD for drug abuse.  His life was the military.  An upgrade and a change to the narrative reason for his discharge would enable him to serve as an instructor to Soldiers.  He is very passionate about training the force that protects him and all of America’s freedom.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	4 December 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	25 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:	F Co, 64th BSB, 3BCT, 4ID, Fort Carson, CO
	f.	Current Enlistment Date/Term:	4 July 2008, 6 years
	g.	Current Enlistment Service:	4 years, 11 months, 22 days
	h.	Total Service:	7 years, 10 months, 10 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (050816-080703) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	88M10, Motor Transport Operator
	m.	GT Score:	103
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (071207-090219)
	q.	Decorations/Awards:	AAM-3; AGCM-2; NDSM; ICM-2CS; GWOTSM; 
			NPDR; ASR; OSR-2; CIB; VUA
	r.	Administrative Separation Board: 	NIF
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 16 August 2005, and reenlisted on 4 July 2008, for a period of 6 years.  He was 26 years old at the time of entry and had a high school equivalency (GED).  He served in Hawaii and Iraq.  He earned three AAM awards.  He completed 7 years, 10 months, and 10 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, Para 14-12c(2), AR 635-200, for misconduct (drug abuse), with a characterization of service of general, under honorable conditions.  The DD Form 214 also shows a Separation Program Designator (SPD) code of JKK and a reentry (RE) code of 4.  

3.  The applicant’s record does not show any recorded actions under the UCMJ, unauthorized absences or time lost.  However, he was separated as a SPC/E-4 and the action that caused his reduction on 3 April 2013, is not part of his AMHRR.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

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

2.  Two NCOERs for the following period:

	a.	1 December 2011 to 30 November 2012, an annual report.  The applicant was rated as “Among the Best” and received 2/1 from the senior rater.
	b.	1 August 2011 to 30 November 2011, an SR option report.  The applicant was rated as “Among the Best” and received 1/1 from the senior rater.

3.  DA Form 1059, Service School Academic Evaluation Report, dated 28 April 2010, indicates the applicant achieved the course standards of the Warrior Leader Course.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an ERB; an e-mail containing a character reference statement, dated 9 May 2013; supporting statement from the applicant’s spouse; character reference memorandum, dated 9 May 2013, rendered by 1SG C; character statement, dated 8 May 2013, by 2LT H; two NCOERs; three DA Form 638, recommendations for AAM award, dated 20 May 2011, 31 July 2012, and 9 August 2012; County Veterans Services cover letter, dated 27 November 2013.

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 a change to the reason for the discharge was carefully considered.  However, after examining the applicant’s record of service during the period of enlistment under review, and 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 his discharge.

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was digitally authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the presumption of government regularity shall prevail in the discharge process.  

3.  The DD Form 214 shows the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  

4.  The applicant requests an upgrade of his characterization to honorable and contends his request is based on the way his situation was handled—he had requested for several months after the death of his mother, help from his chain of command but was told they could not do anything for him, and finally went to the extremes by failing a urinalysis for THC.  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 his receiving 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.  The applicant also requests the narrative reason for his discharge be changed.  The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge.  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 entered 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.  The Transition Center (TC) appropriately selected the SPD code, reentry code and reason for the discharge to execute the commander's intent which in this case was to discharge the applicant for wrongfully using an illegal drug.  Army Regulation 635-5-1 provides the authority for TCs throughout the Army to execute the commanders’ intent and in this case the TC selected the appropriate reentry code, the SPD Code that identified the type of separation and the correct paragraph from AR 635-200 that corresponded with the reason for the applicant’s separation as described in the discharge packet.  However, the discharge packet is not currently available for the Board.

6.  The applicant’s contentions concerning his mental health condition were carefully considered; however, there is no record of a medical examination or mental status evaluation that is normally conducted before a Soldier leaves the Army.  Further, the available record does not support the issue that he suffered any medical conditions while in the Army and the applicant submitted no evidence to support his contentions that his discharge was the result of any medical condition.  It will be the applicant’s responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet and medical records) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

7.  The applicant provided documentary evidence of recommendations for AAM awards and character reference statements that recognized and cited his achievements.  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 incident of misconduct that led to his discharge.

8.  The third party statements provided with the application speak highly of the applicant’s performance.  However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity.

9.  The applicant contends that an upgrade of his discharge will allow him to obtain an instructing employment for soldiers.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

10.  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:  Personal Appearance     Date:  7 April 2014     Location: Washington, DC

Did the Applicant Testify?  yes

Counsel/Representative:  Ms. Shaunne Moore, Wayne County Veterans Service Officer, Wayne County Veterans Services, 2001 East Ash St. Suite D, P.O. Box 227, Goldsboro, NC 27533

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Certificate SSDIII – completion – 4 pages
	b.  Certificate Unit Movement Officer – completion – 2 pages
	c.  Election of Rights Memorandum – 3 pages
	d.  Response signature page ERM – 1 page
	e.  Separation Approval Authority Memorandum – 2 pages

2.  The applicant presented no additional contentions.

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  2	No Change:  3
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)		AR20130021526

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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