AR20140002371

IN THE CASE OF: Mr.

BOARD DATE: 30 January 2015

CASE NUMBER: AR20140002371
___________________________________________________________________________

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 is requesting an upgrade because he was never found guilty of any charges by the civilian authorities or the UCMJ. The only charges he was found guilty of, was fleeing the police and resisting arrest. He served his country with respect and honor; therefore, an upgrade is warranted.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 3 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 3 October 2013
d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Paragraph
14-12c(2), JKK, RE-4
e. Unit of assignment: Group Service Spt Co, Group Spt Bn, 5th Specialist
Forces Group (Airborne), Fort Campbell, KY
f. Current Enlistment Date/Term: 14 October 2009, 6 years, 25 weeks
g. Current Enlistment Service: 3 years, 11 months, 20 days
h. Total Service: 3 years, 11 months, 20 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 92F10, Petroleum Supply Specialist
m. GT Score: 119
n. Education: Some college
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: AGCM; 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 14 October 2009, for a period of 6 years and 25 weeks. He was 24 years old at the time of entry and had some college. He was trained in and awarded military occupational specialty (MOS) 92F10, Petroleum Supply Specialist. His record documents no acts of valor or significant achievement. He completed 3 years, 11 months, and 20 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 20 August 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, by reason misconduct-abuse of illegal drugs, specifically for wrongfully using a synthetic cannabinoid (spice) (130512).

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 22 August 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted 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 16 September 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 3 October 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. Article 15, dated 18 July 2013, for failing to obey a lawful general regulation by wrongfully using synthetic cannabis (spice) (130512) and operating a passenger car in a reckless manner (130512). The punishment consisted of a reduction to the grade of E-1, forfeiture of $758 per month for two months, and 45 days of extra duty and restriction, (FG).

2. A negative counseling statement, dated 12 May 2013, for fleeing or evading police; resisting arrest; reckless driving; and possession of synthetic cannabinoid.

3. A General Officer Memorandum of Reprimand (GOMOR), dated 20 June 2013, for driving while intoxicated, being apprehended for speeding, being observed driving erratically on the road, evading and resisting arrest, and being subdued by force.

4. An MP Desk Blotter, dated 12 May 2013, that indicates the applicant was the subject of an investigation for fleeing and evading police, reckless driving, resisting arrest, and possession of synthetic cannabis.

5. A state police report, dated 12 May 2013, indicates the applicant was cited for the offenses described in the preceding paragraph 4 and that a synthetic cannabinoid (juicy herbs) was seized as evidence.

6. A district court document, dated 21 June 2013, indicates the applicant pleaded guilty to the charges of fleeing and evading police and resisting arrest, and the charges regarding reckless driving and possession of synthetic cannabinoid were dismissed upon his plea of guilty.

7. Memorandum for Record, dated 8 July 2013, subject: Court Order for [the applicant] from 20 June 2013 Proceedings in [a county, state circuit court], rendered by the commands battalion judge advocate, details the court document described at the preceding paragraph 6.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 for service under current review; a AGCM permanent orders, dated 12 October 2012; counseling statement, dated 12 May 2013; district court documents, dated 21 June 2013; two character reference statements; HBI International letter, dated 23 July 2013; letter of support, dated 25 September 2013; and 16 EMSL Analytical, Inc. reports, dated 29 June 2012.

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 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 an Articles 15 action for violations of the Uniform Code of Military Justice, a GOMOR, and a negative counseling statement.

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 he served his country with respect and honor. 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 offense of abusing an illegal drug.

5. The applicants contentions about not being found guilty except for fleeing the police and resisting arrest as basis for his request for an upgrade were carefully considered. 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 new evidence to support the contention that he may have been unjustly discriminated. The applicants statements alone do not overcome the governments presumption of regularity. The documentary evidence he submitted were previously considered in his separation proceedings by the separation authority.

6. The third party statements provided with the application speak highly of the applicants performance and a supporting statement that refutes the basis for his separation. However, the persons providing the character reference and supporting 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 or consider toward an upgrade of his discharge.

7. 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.

8. 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: 30 January 2015 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) AR20140002371

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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