AR20140000978

IN THE CASE OF: Mr.

BOARD DATE: 5 December 2014

CASE NUMBER: AR20140000978
___________________________________________________________________________

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 under other than honorable conditions to honorable.

2. The applicant states, in effect, he was illegally and improperly discharged after a positive drug test. He states he openly admitted to substance abuse to his superiors. He states he was discharged without rehabilitation or a administrative separation board hearing. He contends he suffers from Post Traumatic Stress Disorder (PTSD).

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 8 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 21 May 2011
d. Reason/Authority/SPD/RE Code: Misconduct, Other, AR 135-178, NIF, NIF
e. Unit of assignment: 389th Regiment, 1st Battalion (BCT), Fort
Buchanan, PR
f. Current Enlistment Date/Term: 8 January 2007/NIF
g. Current Enlistment Service: 4 years, 4 months, 14 days
h. Total Service: 7 years, 4 months, 14 days
i. Time Lost: None
j. Previous Discharges: DEP, 030815-040107, NA
RA, 040108-070107, HD
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 92Y10, Unit Supply Specialist
m. GT Score: 87
n. Education: HS Graduate
o. Overseas Service: SWA
p. Combat Service: Iraq, (050715-060110)
q. Decorations/Awards: ARCOM, AAM, MUC, AGCM, NDSM,
GWOTEM, GWOTSM, ASR, OSR
r. Administrative Separation Board: NIF
s. Performance Ratings: NA
t. Counseling Statements: NIF
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 8 January 2004, for a period of 3 years. He was 20 years old at the time of entry and a high school graduate. Upon completion of his active duty service he was transferred to the US Army Reserve (USAR), Control Group (Reinforcement), Saint Louis, Missouri. He served in Iraq and earned an ARCOM and a AAM. He completed 7 years, 4 months, 14 days of total military service. When his discharge proceedings were initiated, he was serving at Fort Buchanan, Puerto Rico.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The applicants service record is void of the specific facts and circumstances concerning the events which led to the discharge from the USAR. However, the record contains a properly constituted discharge and reduction order, dated 16 May 2011.

2. Orders Number 11-136-00064, dated 16 May 2011, indicates that on 16 May 2011, the applicant was reduced to the lowest enlist rank and effective 21 May 2011, the applicant was discharged under the provisions of AR 135-178, from the USAR, with a characterization of service of under other than honorable conditions.

3. The applicants available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Orders Number 11-136-00064, dated 16 May 2011.

2. DD Form 214 reflects a discharge date of 7 January 2007, from active duty and transfer into the USAR.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 4 December 2013, a DD Form 214, and Orders Number 11-136-00064.

POST-SERVICE ACTIVITY:

The applicant did not provide any in support of his application.

REGULATORY AUTHORITY:

1. Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. Chapter 12 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.

2. 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.
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, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The applicants record is void of the specific facts and circumstances concerning the events which led to his discharge from the USAR. However, the record contains a properly constituted discharge order.

3. The discharge order indicates the applicant was discharged under the provisions of AR 135-178, with a characterization of service of under other than honorable conditions. Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4. The applicant contends he believes his discharge was illegal and improper because he failed a drug test and was separated without any rehabilitation. However, AR 135-178, paragraph 2-4d(2) and (3), states the rehabilitative requirements may be waived by the separation authority in circumstances where further duty of the Soldier would create disciplinary problems, or create a hazard to the military mission or to the Soldier, or would seriously affect unit readiness; or further duty of the Soldier would be inappropriate because rehabilitation would not produce the quality Soldier desired by the USAR . Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance.

5. The applicant contends that he did not receive an administrative separation board hearing. However, there is insufficient evidence available in the official record to make a determination that the applicants rights were violated. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicants statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.

6. The applicant contends he was suffering from PTSD. However, the service record contains no evidence of a PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.

7. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Boards consideration because they are not available in the official record.

8. Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 5 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 Discharge Order: 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) AR20140000978

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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