AR20140001478

IN THE CASE OF: Mr.

BOARD DATE: 17 December 2014

CASE NUMBER: AR20140001478
___________________________________________________________________________

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 pertinent part and in effect, he was accused of a positive urinalysis; however, there is no record of the test. He was interviewed by the CID on account of another Soldier, PV2 W, who was known as a Pot Head and a marijuana dealer in the unit, and who was being discharged for different reasons. As for the applicant, there was no disciplinary action or any record of being reduced in grade. The rear detachment did not care what happened to a good Soldier.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 17 January 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 18 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: HQs, 2nd Sqdn, 17th Cavalry Regiment, 101st CAB
(Rear) (Provisional), 101st Airborne Div (Air Assault)
(Rear) (Provisional), Fort Campbell, KY
f. Current Enlistment Date/Term: 11 August 2009, 4 years
g. Current Enlistment Service: 3 years, 5 months, 8 days
h. Total Service: 3 years, 5 months, 8 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 25U10, Signal Support System Specialist
m. GT Score: 98
n. Education: HS Graduate
o. Overseas Service: Korea
p. Combat Service: None
q. Decorations/Awards: AGCM; NDSM; GWOTSM; ASR
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: None
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 11 August 2009, for a period of 4 years. 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) 25U10, Signal Support System Specialist. His record documents no acts of valor or significant achievement. He completed 3years, 5 months, and 8 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 28 November 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense), specifically for admitting that he used marijuana in a sworn statement to the CID.

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 28 November 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement 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 7 January 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 18 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 an 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. A sworn statement, dated 16 August 2012, rendered by the applicant during a CID investigation indicates the applicant made a statement of having smoked marijuana during mid-July 2012. A Rights Warning Procedure/Waiver Certificate was also attached to the statement.

2. A CID preliminary report, dated 29 August 2012, indicates the applicant was the subject of an investigation for wrongful use of marijuana.

3. There is no record of any negative counseling statement or any action under the UCMJ.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

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 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, his military records, and the 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.

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 the discharge was unjust because there was no record of any positive urinalysis; however, the evidence indicates he was involuntarily separated on the basis of admitting in a sworn statement that he used marijuana. There is also 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 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 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.

6. 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: 17 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) AR20140001478

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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