1.	APPLICANT’S NAME:      

	a.	Application Date:  16 March 2014

	b.	Date Received:      19 March 2014

	c.	Counsel:  Yes

2.  REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION:  The applicant requests an upgrade of his general, under honorable conditions discharge to honorable, and a change to the narrative reason for separation.  The applicant states through counsel, in effect, he was diagnosed with a generalized anxiety disorder and did not receive sufficient treatment to overcome this condition. He is missing documents in the Government record.  His unit commander did not complete DA Form 3349 as required.  He was not separated under Chapter 5 prior to incident despite statement from CPT B.  His assigned counsel from Trial Defense Services (TDS), refused to follow requirements in accordance with (IAW) AR 27-26 and provide witnesses as requested by the applicant.  He was refused witness testimony despite request through counsel.  The government collected private medical information without approval from medical authority.  The unit did not follow regulations by sending the applicant to rehabilitation 13 days late.  He was separated despite ASAP recommendation for retention.  The ASAP director found evidence of mitigating circumstances and that evidence was ignored.  No governmental body in the process made note of the medical aspects of the applicant’s specific situation despite requirements under AR 635-200 and AR 600-85.  He failed to receive a fair, impartial and proper hearing before an administrative separation board; he failed to receive notice of administrative separation board convening, and was not advised of rights regarding the board.  A prior records review was conducted on 12 February 2014.  

In a personal appearance conducted at Arlington, VA on 27 July 2015, and by a 3-2 vote, the Board after carefully examining the applicant’s record of service during the period of enlistment under review and hearing his testimony, determined the characterization of service was too harsh based on the overall length and quality of the applicant’s service to include his combat service, and the circumstances surrounding the discharge (i.e., numerous minor irregularities during administrative separation board proceedings), mitigated the discrediting entry in the service record, and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable.  The Board determined the reason for discharge was both proper and equitable and voted not to change it.

	(Board member names available upon request.)

3.	DISCHARGE DETAILS:

	a.	Reason/Authority/Codes/Characterization:  Misconduct/AR 635-200, Paragraph 14-12c(2)/JKK/RE-4/General, Under Honorable Conditions

	b.	Date of Discharge:  17 April 2005





	c.	Separation Facts:  

		(1)	Date of Notification of Intent to Separate:  23 July 2004

		(2)	Basis for Separation:  The applicant was informed of the following reason for his discharge; he wrongfully used cocaine between 1 May 2004 and 1 June 2004.

		(3)	Recommended Characterization:  GD

		(4)	Legal Consultation Date:  26 July 2004, waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than honorable.  On 24 September 2004, the separation approving authority disapproved the applicant’s conditional waiver request and referred his case to an administrative separation board.

		(5)	Administrative Separation Board:  On 8 November 2004, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant be discharged with a general, under honorable conditions discharge.

		(6)	Separation Decision Date/Characterization:  7 January 2005/GD

4.	SERVICE DETAILS:

	a.	Date/Period of Enlistment:  29 January 2003/Indefinite

	b.	Age at Enlistment/Education/GT Score:  32 years/HS Graduate/120

	c.	Highest Grade Achieved/MOS/Total Service:  SSG/E-6/15T2P, UH-60 Helicopter Repairer/15 years, 8 months and 17 days
  
	d.	Prior Service/Characterizations:  RA/1 August 1989-31 March 1994/HD
                                                                     RA/1 April 1994-10 February 1997/HD
                                                                     RA/11 February 1997-16 April 1998/HD
                                                                     RA/17 April 1998-23 June 1999/HD
                                                                     RA/24 June 1999-3 May 2000/HD
                                                                     RA/4 May 2000-28 January 2003/HD

	e.	Overseas Service/Combat Service:  Germany, Korea, Puerto Rico, Haiti/Southwest Asia/Saudi Arabia/8 September 1990-5 April 1991
  
	f.	Awards and Decorations:  ARCOM-3, AAM-11, AGCM-4, NDSM-2, AFEM-2, SWASM-W/2BS, GWOTSM, KDSM, HSM-2, NPDR-2, ASR, OSR-3, UN MDL, NATO MDL, SA-KUL, KU-KLM
  
	g.	Performance Ratings:  Two successful NCOERs covering the periods from January 2003 thru April 2004; and a marginal report covering the period from May 2004 thru February 2005
  



      h.	Disciplinary Action(s)/Evidentiary Record:  FG Article 15 dated, 22 June 2004, for wrongfully using cocaine between 1 May 2004 and 1 June 2004; reduced to SGT/E-5, forfeiture of $1,184 pay for two months and extra duty for 45 days.

A positive urinalysis report coded IU (Inspection Unit), dated 1 June 2004, for cocaine
  
	i.	Lost Time:  None
  
	j.	Diagnosed PTSD/TBI/Behavioral Health:  DA Form 3349 (Physical Profile), dated 
24 March 2004, indicated the applicant had a permanent profile for a generalized anxiety disorder.

A Memorandum, Psychological Evaluation, dated 1 March 2004, indicates the applicant had an Axis 1 diagnosis of mood disorder NOS (mixed anxiety and depression) and R/O Somataform disorder.

5.	APPLICANT-PROVIDED EVIDENCE:  DD Form 293, DD Form 214, two DA Forms 3349 (Physical Profile), a psychological evaluation memorandum, proposed witness list memorandum (two pages), DA Form 4254, DA Form 2870 (Authorization for Disclosure of Medical or Dental Information), two DA Forms 5018-R (ADAPCP Client’s Consent for Release of Treatment Information), two DD Forms 2870 (Authorization for Disclosure of Medical or Dental Information, three pages), Legal Assistance of Western New York, Inc. (five pages), duplicate DD Form 293, request for immediate entry into ASAP memorandum, two medical statements on the applicant, Chapter 14 separation notification memorandum (two pages), and a DA Form 3349 (Physical Profile).  Additional documents provided; letter, Legal Assistance of Western New York, Inc. (two pages) and the administrative separation board proceedings (five pages).

6.	POST SERVICE ACCOMPLISHMENTS:  None

7.	REGULATORY CITATION(S):  Chapter 14 allows for separation for misconduct with paragraph 14-1 allowing for separating personnel because of minor disciplinary infractions; a pattern of misconduct; commission of serious offense; conviction by civil authorities; desertion; or absence without leave.  Paragraph 14-2 states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a Soldier further effort is not likely to succeed; rehabilitation is impracticable or the Soldier is not amenable to rehabilitation.

Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct.  It continues; however, by recognizing relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a or 14-12b as appropriate.
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.

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.

8.	DISCUSSION OF ISSUE(S):  The applicant requests an upgrade of his general, under honorable conditions discharge to honorable and a change to the narrative reason for separation.  The applicant’s record of service, issues and the documents submitted with the application were carefully reviewed.

The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a NCO.  The applicant, as a 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 that ultimately caused his discharge from the Army.

Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes 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 14-12c(2), misconduct. The regulation further stipulates that no deviation is authorized.

The applicant seeking relief contends; he was diagnosed with a generalized anxiety disorder and did not receive sufficient treatment to overcome this condition; he is missing documents in the Government record, his unit commander did not complete DA Form 3349 as required; he was not separated under Chapter 5 prior to incident despite the statement from CPT B; his assigned counsel from Trial Defense Services (TDS) refused to follow requirements IAW AR  27-26 and provide witnesses as requested by the applicant; he was refused witness testimony despite request through counsel; the government collected private medical information without approval from medical authority; his unit did not follow regulations by sending the applicant to rehabilitation until 13 days later; he was separated despite ASAP recommendation for retention; the ASAP director found evidence of mitigating circumstances and that evidence was ignored, and no governmental body in the process made note of the medical aspects of the applicant’s specific situation despite requirements under IAW AR 635-200 and AR 600-85; he failed to receive a fair, impartial and proper hearing before an administrative separation board; he failed to receive notice of administrative separation board convening, and was not advised of rights regarding the board.

The applicant contends he was diagnosed with a generalized anxiety disorder and did not receive sufficient treatment to overcome this condition.  The record of evidence shows the applicant was placed on permanent profile for a generalized anxiety disorder with no airborne operations.  The applicant bears the burden of presenting substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention he did not receive sufficient treatment to overcome his condition.

The applicant further contends he is missing documents in the Government record.  It is the applicant’s responsibility to meet the burden of proof and provide the appropriate documents or any other evidence sufficient to explain the circumstances and reasons for the separation action.





The applicant also contends his unit commander did not complete DA Form 3349 (Physical Profile) as required.  The unit commander does not complete the DA Form 3349.  This document is prepared by the medical treatment facility and signed by the profiling officer or the approving authority.

The applicant additionally contends he was not separated under Chapter 5 prior to incident despite the statement from CPT B.  Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.

The applicant contends his assigned counsel from Trial Defense Services (TDS), refused to follow requirements IAW AR 27-26 and provide witnesses as requested by the applicant; he was refused witness testimony despite request through counsel.  The applicant submitted a proposed witness list to his defense counsel.  The record of evidence shows some of the witnesses from the list were called and others were not.  Some witnesses that weren’t on the list were called as well.  AR 635-200, paragraph 2-10b, states the Soldier will be notified that the recorder of the board will upon request of the Soldier, try to arrange for the presence of any available witness that he/she desires.

The applicant contends the government collected private medical information without approval from medical authority. 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.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that medical information was collected without approval from the medical authority.

The applicant contends his unit did not follow regulations by sending the applicant to rehabilitation 13 days late.  AR 600-85, paragraph 3-5b states, a Soldier’s alcohol or other drug abuse may be identified through military or civilian law enforcement investigation and/or apprehension.  The unit commander will refer the individual to the ASAP counseling center for an initial screening interview within 72 hours of notification of apprehension of a soldier for apparent alcohol or other drug abuse.  The DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment Form, is not contained in the available record to substantiate the actual enrollment date and government regularity is presumed in the process.

The applicant contends he was separated despite the ASAP recommendation for retention; the ASAP director found evidence of mitigating circumstances and that evidence was ignored; and no governmental body in the process made note of the medical aspects of the applicant’s specific situation despite requirements under AR 635-200 and AR 600-85.  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.

Lastly, the applicant contends he did not receive a fair, impartial and proper hearing before an administrative separation board; he did not receive notice of the administrative separation board convening, and was not advised of rights regarding the board.  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.  There is no evidence in the available record, nor has the applicant produced any evidence to support the contention his administrative separation board was not conducted in accordance with the regulation.

The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and the applicant was provided full administrative due process.

10.  Witness(es):  Yes

11.  The applicant provided the following additional documents at the hearing:

	Separation Under AR 635-200, Chapter 14 memo, dated 23 July 2004 (2 pages)

The applicant presented no additional contentions.

12.	BOARD ACTION DIRECTED:

	a.	Issue a new DD-214:		  	Yes

	b.	Change characterization to: 	Honorable
		
	c.	Change Reason to:  			No Change

	d.	SPD/RE Code Change to:  		No Change

	e.	Restoration to Grade:  		NA


Authenticating Official:




COL, US ARMY
Presiding Officer 
Army Discharge Review Board







Legend:
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  
FG - Field Grade	IADT – Initial Active Duty Training	RE - Reentry	                Honorable Conditions 	

ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE

AR20140005052

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