IN THE CASE OF:  	

      BOARD DATE:  	23 March 2015

      CASE NUMBER:  	AR20150000435
___________________________________________________________________________

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 notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the applicant’s quality of his service (i.e., two AAMs) and his testimony and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable, and voted not to change it.  



      
      
      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.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of rejoining the military and continuing his career.  He contends he was wrongfully discharged because of an isolated incident that he had no control of.  He contends there was no negative action, behavior or conduct on his behalf.  He contends his use of marijuana was the result of his older relative using marijuana in food during the Christmas block leave.  He was a hardworking Soldier and has a passion for helping others.  He was a college student and volunteered for events and community organizations that needed Army help.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		6 January 2015
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			29 May 2013
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14 						Paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			108th QM Co, 530th CSS Bn, 23rd QM Bde 							Fort Lee, VA
f. Current Enlistment Date/Term:	5 July 2011, 6 years and 23 weeks
g. Current Enlistment Service:	1 year, 10 months, 25 days
h. Total Service:			1 year, 10 months, 25 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92F10, Petroleum Supply Specialist
m. GT Score:				110
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		AAM-2, NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			Yes
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 5 July 2011, for a period of 6 years and 23 weeks.  He was 20 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 92F10, Petroleum Supply Specialist.  He was serving at Fort Lee, Virginia, when his discharge was initiated.  His record indicates he earned several awards to include two AAMs and achieved the rank of PFC/E-3.  He completed 1 year, 10 months, and 25 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 2 April 2013, 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 submitting to a unit urinalysis (130103), which tested positive for marijuana, and subsequently admitting, in a sworn statement, to the use of marijuana while on holiday block leave in Georgia.  

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 11 April 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, which he was not entitled too.  The applicant indicated his intentions to submit a statement on his own behalf; however, in a separated statement he indicated he would not be submitting a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  On 22 April 2013, the intermediate commander reviewed the proposed action and recommended retaining the applicant on active duty.

4.  On 14 May 2013, 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 29 May 2013, 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 a 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.  There is a positive urinalysis report contained in the record coded; IU (Inspection Unit),       3 January 2013, marijuana.

2.  Article 15, imposed on 4 March 2013, for wrongfully using a controlled substance between (121204 and 120103).  The punishment consisted of reduction to the grade of E-2 (suspended), forfeiture of $849.00 pay per month for two months (suspended), and extra duty for 45 days (FG).
3.  A CID Report dated 28 January 2013, which indicates the applicant was the subject of an investigation for the wrongful use of marijuana. 

4.  Two negative counseling statements, dated 28 January 2013 and 22 February 2013, for administrative separation being initiated due to a positive urinalysis, and wrongfully using an illegal substance. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a self-authored letter, a copy of the intermediate commander's recommendation, four letters of support, sworn statement, agent's investigation report, certificate of achievement, and a technical certificate of credit for the Law Enforcement Management Course.

POST-SERVICE ACTIVITY: 

None provide 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.

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, the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

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.  The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice (i.e., testing positive for marijuana) and negative counseling statements.

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 he was wrongfully discharged.  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 he may have been wrongful discharged.  

5.  The applicant contends the incident that caused his discharge was an isolated incident in his Army career.  Although a single 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 a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.

6.  Furthermore, 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 general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge.  However, his misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.

7.  The applicant expressed his desire for an upgrade of his discharge for the purpose of rejoining the military and continuing his career.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  A RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

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, the analyst recommends the Board deny relief.

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 notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the applicant’s quality of his service (i.e., two AAM's) and his testimony and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable, and voted not to change it.  



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance	  Date:  23 March 2015     Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: None

Witnesses/Observers:  Yes

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted no additional documents or 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:  4	No Change:  1
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			Honorable
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
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)		AR20150000435



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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