AR20140000137

IN THE CASE OF: Mr.

BOARD DATE: 3 December 2014

CASE NUMBER: AR20140000137
___________________________________________________________________________

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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests to upgrade the characterization of his service from under other than honorable to general, under honorable conditions or honorable.

2. The applicant states, in pertinent part and in effect, his discharge was inequitable because the circumstances in which he was found guilty were faulted. He never witnessed his urinalysis specimen being sealed with a tamper evidence tape after the first one broke and was not given the opportunity to retake the test; the only account he had of being wrongfully accused. He would like the chance to serve his country again.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 19 December 2013
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 14 June 2013
d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 635-200,
Chapter 10, KFS, RE-4
e. Unit of assignment: A Btry, 4th Bn, 25th Artillery Regiment, 3rd BCT,
Fort Drum, NY
f. Current Enlistment Date/Term: 18 June 2011, 3 years, 18 weeks
g. Current Enlistment Service: 0 years, 11 months, 22 days
h. Total Service: 0 years, 11 months, 22 days
i. Time Lost: 5 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 13B10, Cannon Crewmember
m. GT Score: 92
n. Education: HS Graduate
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: NDSM; GWOTSM; ASR
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 18 June 2011, for a period of 3 years and 18 weeks. He was 19 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 13B10, Cannon Crewmember. His record documents no acts of valor or significant achievement. He completed 11 months and 22 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 15March 2013 and 15 April 2013, the applicant was charged with the following offenses:

a. Charge preferred on 15 March 2013, for violations of Article 112a, UCMJ:
(1) wrongful use of marijuana (121015-121031) and
(2) wrongful use of marijuana (121208-130108).

b. Three additional charges preferred on 15 April 2013. Additional Charge I for violations of Article 112a, UCMJ:
(1) wrongful use of marijuana (130216-130316) and
(2) wrongful use of marijuana (130225-130325).

c. Additional Charge II, for violation of Article 134, UCMJ, for possessing a firearm, in violation of Article 265.01-b of a State Penal Law (130402).

d. Additional Charge III, for violation of Article 92, UCMJ:

(1) violation of a general regulation for wrongful possession of an unregistered firearm with Provost Marshal Office (130402) and
(2) violation of a general regulation for wrongful possession of a firearm in a barracks building (130402).

2. On 3 May 2013, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans benefits. The applicant did not elect whether he was submitting a statement on his own behalf. The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.

3. On 29 May 2013, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank.

4. The applicant was discharged from the Army on 14 June 2013, with a characterization of service of under other than honorable conditions.

5. The applicants record of service also indicates five days of time lost for being AWOL from 24 May 2013 through 28 May 2013; however, the method of his return to military control is not available.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Two charge sheets described at the preceding paragraph 1.

2. There are three positive urinalysis reports contained in the record:

a. IR, Inspection Random, 5 December 2012, marijuana;
b. IR, Inspection Random, 8 January 2013, marijuana; and
c. IR, Inspection Random, 5 March 2013, marijuana.

3. A negative counseling statement, dated 7 January 2012, for testing positive for marijuana during a urinalysis.

4. A CID Report, dated 9 January 2013, indicates the applicant was the subject of an investigation for testing positive for marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement.

POST-SERVICE ACTIVITY:

The applicant provided none.

REGULATORY AUTHORITY:

1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2. 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.

3. 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.

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 “KFS” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “KFS” will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants record of service, the issues and document submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.

4. The applicant contends the discharge was inequitable because the circumstances in which he was found guilty were faulted as he never witnessed his urinalysis specimen being sealed with a tamper evident tape after the first one broke and was not given the opportunity to retake the test, the only account he had of being wrongfully accused. 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 his issues. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated. The applicants statements alone do not overcome the governments 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.

5. The applicant desires to rejoin the Military Service. 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. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

6. Therefore, the reason and 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: 3 December 2014 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

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) AR20140000137

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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