AR20140002409

IN THE CASE OF: Ms.

BOARD DATE: 23 January 2015

CASE NUMBER: AR20140002409
___________________________________________________________________________

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 her discharge from general, under honorable conditions to honorable and a change to the narrative reason for separation.

2. The applicant states, in effect, she was chaptered on her ETS date. She was not fully advised on how to challenge, refute or appeal this process and did not receive a copy of her discharge packet. She was forced to sign a document she did not understand; regarding a rebuttal packet as to why she deserved to complete her term of service. She took urinalysis tests on a bi-weekly and monthly basis and never tested positive again; she has never been in serious trouble before within the Army or outside of it. She did not use drugs and when referred to the ASAP program she was not a candidate for rehabilitation. She believes her case was unfairly handled by her unit and would have been able to ETS if the command had allowed her to complete the process.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 3 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 4 June 2012
d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, Chapter 14, paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment: C Co, 426th Brigade Support Battalion, Fort Campbell, KY
f. Current Enlistment Date/Term: 5 June 2008, 4 years
g. Current Enlistment Service: 4 years
h. Total Service: 4 years
i. Lost time: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 68W10, Health Care Specialist
m. GT Score: 133
n. Education: 14 years
o. Overseas Service: Southwest Asia
p. Combat Service: Afghanistan (100915-110315)
q. Decorations/Awards: ARCOM, AAM, AGCM, NDSM, ACM-W/CS, GWOTSM, ASR, OSR, VUA, MUC
r. Administrative Separation Board: No
s. Performance Ratings: No
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 5 June 2008, for a period of 4 years. She was 26 years old at the time of entry and had completed two years of college. She was trained in and awarded military occupational specialty (MOS) 68W10, Health Care Specialist. Her record also shows she served a combat tour, earned several awards including an ARCOM, AAM, and an AGCM; and she achieved the rank of SPC/E-4. She was serving at Fort Campbell, KY when her discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates on 20 March 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-abuse of illegal drugs for wrongfully using cocaine.

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 May 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on her own behalf which was not contained in the separation files. 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 18 May 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5. The applicant was discharged from the Army on 4 June 2012, 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), with 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. An Article 15, dated 2 February 2012, for wrongfully using cocaine (111116-111123); the punishment consisted of a reduction to E-1, forfeiture of $745 pay for two months (suspended), and extra duty for 45 days, (FG).

2. The applicant received two negative counseling statements, dated 6 March 2012 and 11 June 2012, for debt collection notice and testing positive for cocaine.

3. The record contains a positive urinalysis report coded IR (Inspection Random), dated 23 November 2011, for cocaine.

4. A DA Form 3822 (Report of Mental Status Evaluation), dated 5 March 2012, indicating the applicant was diagnosed with an anxiety disorder not otherwise specified (NOS). She was screened for PTSD and TBI, in accordance OTSG/MEDCOM Policy Memo 10-040 and the results were negative. She was psychiatrically cleared for Chapter 14-12c consideration per her command.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application (seven pages), and two character statements.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with her 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), 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 her discharge and a change to the narrative reason for her discharge was carefully considered. However, after examining the applicants record of service, her military records, the issues and documents 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 the applicants discharge was appropriate because the quality of her 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 her service below that meriting an honorable discharge. The applicants record of service was marred by an Article 15, two negative counseling statements, and a positive urinalysis report.

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

4. The applicant requested a change to her narrative reason for separation. 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 the misconduct (drug abuse). The regulation further stipulates that no deviation is authorized.

5. The applicant contends she was chaptered on her ETS date. The separation approving authority approved her discharge on 18 May 2012, well in advance of her ETS date.

6. The applicant further contends she was not fully advised on how to challenge, refute or appeal this process and did not receive a copy of her discharge packet. The record of evidence shows on 10 May 2012 the applicant consulted with legal counsel, she initialed block 4 on the election of rights form indicating she understood if she received a characterization of service less than honorable, she could apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for an upgrade.
7. Further, the record also shows on 20 March 2012, the unit commander notified the applicant of initiation of separation action; paragraph 7 of the notification memorandum stated the applicant could obtain copies of documents that would be sent to the separation authority. The record does not show that the applicant requested a copy of the separation packet or any other documents.

8. The applicant also contends she was forced to sign a document she did not understand regarding a rebuttal packet as to why she deserved to complete her term of service. 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 this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention she was forced to sign documents.

9. The applicant additionally contends she took urinalysis tests on a bi-weekly and monthly basis and never tested positive again. She also contends she has never been in serious trouble before within the Army or outside of it. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization of service. The applicant’s incident of misconduct adversely affected the quality of her service, brought discredit on the Army, and was prejudicial to good order and discipline.

10. Moreover, the applicant contends she did not use drugs and when referred to the ASAP program, she was not a candidate for rehabilitation. The record contains a positive urinalysis report which shows the applicant tested positive for cocaine. AR 600-85, paragraph 7-1b states, all Soldiers, to include ARNG and USAR Soldiers ordered to AD, under Title 10 USC, who are identified as drug abusers, without exception, will be referred to the ASAP counseling center for evaluation.

11. Furthermore, the applicant contends she believes her case was unfairly handled by her unit and would have been able to ETS on time if the command had allowed her to complete the process. 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.

12. The third party statements provided with the application speak highly of the applicants performance and her character. They recognize her good conduct during her service in the Army; however, none of these persons providing the character reference statements were in a position to fully understand and appreciate the expectations of the applicants chain of command. As such, these statements did not provide any evidence sufficiently compelling to overcome the presumption of government regularity.

13. The records show the proper discharge and separation authority procedures were followed in this case.

14. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 23 January 2015 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change: 2 No Change: 3
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) AR20140002409

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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