AR20140000422

IN THE CASE OF: Mr.

BOARD DATE: 3 December 2014

CASE NUMBER: AR20140000422
___________________________________________________________________________

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 general, under honorable conditions to fully honorable.

2. The applicant states, in effect, he was not provided the appropriate consideration in the reasons leading up to the type of discharge he would receive. He is not sure if the affidavits rendered by his fellow Soldiers were considered when a decision was made in his case. In his self-authored statement, he details the circumstances surrounding the incident that led to his separation. He feels the positive urinalysis for which he was separated was a false positive due to different types of medications and he had a chemical imbalance in his body. He adds he served over two years without an incident and he worked hard being the best Soldier. He is pursuing a return to school to obtain a degree. His ultimate goal is to reenlist as he still has a lot to offer but if he is unable to, he plans to pursue law enforcement where his combat training would be valuable.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 23 December 2013
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 4 January 2013
d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Paragraph
14-12c(2), JKK, RE-4
e. Unit of assignment: A Co, 1st Bn, 16th Infantry Regiment, 1st Armored
Brigade Combat Team, Fort Riley, KS
f. Current Enlistment Date/Term: 18 February 2010 / 3 years, 14 weeks
g. Current Enlistment Service: 2 years, 10 months, 29 days
h. Total Service: 2 years, 10 months, 29 days
i. Time Lost: None
j. Previous Discharges: ARNG (100203-100217) / NA
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 11B10, Infantryman
m. GT Score: 105
n. Education: HS Graduate
o. Overseas Service: SWA
p. Combat Service: Afghanistan (110115-111229)
q. Decorations/Awards: ARCOM; NDSM; ACM-2CS; GWOTSM; ASR; OSR
NATO MDL; CIB
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 February 2010, for a period of 3 years and 14 weeks. He was 26 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman. He served in Afghanistan. He earned an ARCOM. He completed 2 years, 10 months, and 15 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 22 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 for commission of a serious offense-abuse of illegal drugs, specifically for wrongfully using marijuana, failing to report to his appointed place of duty, and willfully disobeying an NCO.

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 30 October 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted statements on his own behalf. 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 15 November 2012, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions.

5. The applicant was discharged from the Army on 4 January 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), a Separation Program Designator code (SPD) of JKK, and a RE code of 4.

6. The applicants 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: IR, Inspection Random, 14August 2012, marijuana.

2. Article 15, dated 18 September 2012, for wrongfully using marijuana (120724-120814). The punishment consisted of a reduction to the grade of E-1, forfeiture of $745 per month for two months, 45 days of extra duty and restriction (FG).

3. Article 15, dated 20 August 2012, for failing to go to his appointed place of duty at the prescribed time (120801) and disobeying an NCO (120809). The punishment consisted of 14 days of extra duty and restriction (summarized).

4. Three negative counseling statements, dated between 9 August 2012 and 3 October 2012, for being processed for an involuntary separation due to abuse of illegal drugs; testing positive for THC during a urinalysis; failing to provide a corrective action work-product; and failing to go to his appointed place of duty at the prescribed time.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided two self-authored statement; DD Form 214 for service under current review; and four character reference statements.

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 members 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 Soldiers 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 (drug abuse).

5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “JKK” will be assigned a 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, his military records, and 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 applicants 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 applicants record of service was marred by two Article 15 actions for violations of the Uniform Code of Military Justice and negative counseling statements.

3. The applicant provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that the applicants service mitigated the misconduct or poor duty performance.

4. The applicant contends an appropriate consideration for the reason for his discharge or the affidavits by his fellow Soldiers were not provided, and the positive urinalysis for which he was separated was a false positive due to different types of medications and he had a chemical imbalance in his body. 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 sufficient evidence to support the contention that he may have been unjustly discriminated. In fact, the applicants two Article 15 actions and negative counseling statements justify serious incidents of misconduct. The applicants statements alone do not overcome the governments presumption of regularity and no additional corroborating and supporting documentation or sufficient evidence has been provided with the request for an upgrade of the discharge.

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

6. The applicant contends that he had good service which included serving over two years without an incident and working hard being the best Soldier. The applicants 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 incidents of misconduct.

7. The applicant has expressed his desire to rejoin the Service, to have better job opportunities, specifically with the law enforcement, and the benefits of the GI Bill so that he may return to school. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 4. An RE code of 4 cannot be waived and the applicant is not eligible to reenlist. Further, 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.

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 applicants 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, 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) AR20140000422

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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