AR20140000500

IN THE CASE OF: Mr.

BOARD DATE: 19 November 2014

CASE NUMBER: AR20140000500
___________________________________________________________________________

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 an upgrade of his discharge from general, under honorable conditions to honorable and a change to the narrative reason for separation.

2. The applicant states, in effect, he had his chapter packet reviewed by another legal team. They stated that his Post Commander signed the memorandum extending him past his ETS and did not go through the Department of the Army for approval. This made his Chapter 14 improper. He should have received an honorable discharge.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 24 December 2013
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 12 November 2013
d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, 14-12c(2), JKK, RE-4
e. Unit of assignment: HSC, 404th Aviation support Battalion, Fort Carson, CO
f. Current Enlistment Date/Term: 25 October 2010, 3 years
g. Current Enlistment Service: 3 year, 18 days
h. Total Service: 6 years, 1 month, 9 days
i. Time Lost: None
j. Previous Discharges: USAR (071003-080318), NA
k. RA (080319-101024), HD (Concurrent Service)
l. Highest Grade Achieved: E-4
m. Military Occupational Specialty: 92G10, Food Service Specialist
n. GT Score: 87
o. Education: HS Graduate
p. Overseas Service: SWA and Korea
q. Combat Service: Afghanistan (090427-091026)
r. Decorations/Awards: ARCOM, AGCM, NDSM, ACM-w/CS-2, GWOTSM, KDSM, ASR, OSR, NATO MDL, MUC
s. Administrative Separation Board: No
t. Performance Ratings: None
u. Counseling Statements: Yes
v. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 19 March 2008, for a period of 2 years. He was 25 years old at the time of entry and was a high school graduate. On 3 October 2010, he reenlisted for a period of 3 years. He was serving at Fort Carson, CO, when his discharge was initiated. His record shows he was awarded an ARCOM, AGCM, and served a combat tour in Afghanistan.
SEPARATION FACTS AND CIRCUMSTANCES

1. The applicants record is void of the case separation documents; however, he provided a copy to support his appeal. The service record indicates that on 6 September 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, for misconduct-abuse of illegal drugs, specifically for on or about 13 March 2013, the applicant wrongfully used oxymorphone, a schedule II controlled substance.

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 10 September 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and indicated he would submit a statement on his behalf (NIF). 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 of the separation with a general, under honorable conditions discharge.

4. On 17 October 2013, 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 12 November 2013, for misconduct (drug abuse), under the provisions of Chapter 14-12c (2), with an SPD Code JKK, and RE code of 4.

6. The service record does not contain any evidence of time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD

1. The applicants record is void of the case separation document; however, he provided a copy of the following:

a. A positive urinalysis report coded as IU, Inspection Unit, dated 13 March 2013, for oxymorphone.

b. Three negative counselings dated between 28 March 2013 and 5 April 2013, for testing positive for oxymorphone and a bar to reenlistment.

c. A FG Article 15, dated 21 August 2013, for wrongfully using oxymorphone, a schedule II controlled substance (130311-130313). The punishment imposed consisted of a reduction to E-1 (suspended), forfeiture of $758.00 pay per month for two months (suspended), and 45 days extra duty and restriction.

2. The record contains a DA Form 1059, dated 20 September 2011.

EVIDENCE SUBMITTED BY THE APPLICANT

The applicant submitted an online DD Form 293, DD Form 214, case separation document, and his AMHRR documents.

POST-SERVICE ACTIVITY:

None was provided 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 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), for 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 applicants request for an upgrade of the characterization of his discharge and a change to the narrative reason for separation was carefully considered. However, after examining the applicants service record and the issues 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 separation.

2. The record confirms that 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 service below that meriting an honorable discharge.

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 that his chapter packet was reviewed by another legal team. They stated that his Post Commander signed the memorandum extending him past his ETS and did not go through the Department of the Army for approval. This made his Chapter 14 improper. 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. Army Regulation 635-200, Chapter 1-22(a), provides in pertinent part; when an investigation is initiated with the view towards a trial by court-martial or a Soldier is awaiting trial or results of a trial; a Soldier may be retained after his term of service has expired when one of the following applies: (1) An investigation of his conduct has been started with a view towards a trial by court-martial and (b) goes on to state; if charges have not been preferred, the Soldier will not be retained more than 30 days beyond the ETS date unless the General Court-Martial Convening Authority approves the retention.

5. As such, he would have had the authority to extend the Soldier’s ETS based on recent misconduct for which the command might pursue court-martial proceedings. On 24 October 2013, the GCMCA extended the Soldier’s ETS until 15 November 2013. The GCMCA extended his ETS because he recently tested positive for oxymorphone a schedule II controlled substance. Apparently, this was to allow the command time to investigate the criminal charge of illegal drug use. The Soldier’s Chapter 14 had previously been approved, so an extension of his ETS was not a subterfuge to allow the completion of his administrative separation. The validity of his Chapter 14 is not brought into question by his subsequent extension on active duty that apparently resulted from new alleged misconduct.

6. 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 his discharge is improper or the Post Commander did not follow proper procedures. 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.

7. The applicant requested that the narrative reason for the discharge be changed. However, 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 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.

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.

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: 19 November 2014 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change: 1 No Change: 4
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) AR20140000500

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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