AR20140002923

IN THE CASE OF:

BOARD DATE: 12 September 2014

CASE NUMBER: AR20140002923
___________________________________________________________________________

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.

2. However, notwithstanding the propriety of the applicants discharge, the Board found that the applicants NGB Form 22, block 23 contains an erroneous authority and reason for separation.

3. In view of the error, the Board recommends an administrative correction to block 23, authority and reason for separation to read “NGR 600-200, paragraph 8-35i (1), misconduct-abuse of illegal drugs based on the separation authority in effect at the time of discharge, as approved by the separation authority.

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 through legal counsel an upgrade of his general, under honorable conditions discharge to honorable, and a change to the narrative reason for discharge.

2. The applicant states, in effect, through legal counsel that his discharge should be upgraded based on reasons of propriety and equity. He contends he was victimized by the Illinois Army National Guard’s egregious disregard of National Guard regulations and Army regulations, thereby depriving of his mandated procedural due process. Furthermore, his outstanding service as a Soldier for eight years and continued service to the United States provided an additional basis to grant his upgrade under the equity standard.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 20 February 2013
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 1 August 2008
d. Reason/Authority/SPD/RE Code: Misconduct (Abuse of Illegal Drugs), Chapter 8 Paragraph 8-35, NGR 600-200, RE-3
e. Unit of assignment: HHC, 1st Bn, 178th Inf, Illinois Army National Guard Chicago, IL
f. Current Enlistment Date/Term: 15 September 2003, UNK (The applicant’s enlistment contract shows 30 June 2003, for a period of 3 years, 8 months, and 7 days; however, the applicant was not discharged from AD until 14 September 2003)
g. Current Enlistment Service: 4 years, 10 months, 17 days
h. Total Service: 8 years, 10 months, 17 days
i. Time Lost: None
j. Previous Discharges: RA-990915-030914/HD ARNG-030915-031222/NA OAD-031223-050313/HD ARNG-050314-080801/NA (Concurrent Service)
k. Highest Grade Achieved: E-5
l. Military Occupational Specialty: 11B20, Infantryman
m. GT Score: 113
n. Education: HS Graduate
o. Overseas Service: Southwest Asia, Korea
p. Combat Service: Iraq (0402221-050212)
q. Decorations/Awards: ARCOM, AAM-2, AGCM, NDSM, KDSM ASR, OSR, GWOTEM, GWOTSM; ARCAM-2 AFRM-M, CIB
r. Administrative Separation Board: NIF
s. Performance Ratings: NIF
t. Counseling Statements: NIF
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 15 September 1999, for a period of 4 years and was discharged honorably on 14 September 2003. On 15 September 2003, he enlisted in the Army National Guard (ARNG) and on 20 October 2003, he extended his enlistment for 3 years. He was 22 years old at the time of entry in the ARNG and a high school graduate. His record indicates he served in Iraq and Korea; earned several awards to include an ARCOM, and two AAMs, AGCM, he achieved the rank of SGT/E-5 and completed 8 years, 10 months, 17 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The available evidence shows the applicants record is void of the specific facts and circumstances concerning the events which led to his discharge from the ARNG State of Illinois and the Reserve of the Army.

2. The record indicates that on 11 July 2008, Department of Military Affairs, State of Illinois, Springfield, IL, Orders 193-461, discharged the applicant from the ARNG and a Reserve of the Army, effective 1 August 2008, with a general, under honorable conditions discharge.

3. The applicants record contained a properly constituted NGB Form 22 (Report of Separation and Record of Service), which was not authenticated by the applicants signature. The NGB Form 22 indicates the applicant was released from the National Guard of Illinois and a Reserve of the Army under the provisions of NGR 600-200, paragraph 8-35h by reason of alcohol or other drug abuse rehabilitation failure with a general, under honorable conditions discharge and a RE code of 3.

4. On 17 January 2013, The Adjutant General (TAG), ARNG of the State of Illinois, reviewed the applicants request for a change in his discharge and denied his request. However, the TAG indicated that as part of the review of the applicants discharge, an error was identified in paragraph 23 of the NGB Form 22, the authority and reason for discharge. On 16 January 2013, a correction was made on NGB Form 22A to reflect paragraph 6-35i, misconduct-abuse of illegal drugs with an effective date of 22 August 2012.

5. The applicants available record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. The record provided the following available information:

a. Orders 223-04, Department of the Army, Taegu Transition Center, 19th Theater Support Command, APO AP, release from active duty effective 14 September 2003.

b. Orders 193-461, Department of Military Affairs, State of Illinois, Springfield, IL, discharge from the Army National Guard and a Reserve of the Army effective 1 August 2008.

c. DA Form 2-1 prepared 20 March 2008.

d. Enlisted Record Brief, dated 30 June 2003 and 7 August 2003.

e. DA Form 639 (Recommendation for Award), dated 13 April 2007.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided the following documents:

a. DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 25 June 2012;

b. A brief in support of his application for upgrade of his discharge from his legal counsel;

c. DD Form 214 for a prior period of service 15 September 1999 thru 3 September 2014;

d. DA Form 638, AAM for Expired Term of Service dated 11 July 2003,

e. Oath of Extension of Enlistment or Reenlistment, dated 20 October 2003 and 14 October 2006,

f. DA Form 638, ARCOM for Achievement, dated 13 April 2007,

g. Discharge Orders 193-461, dated 11 July 2008,

h. NGB Form 22 for the period 15 September 2003-1 August 2008,

i. NGB Form 22A (Correction to NGB Form 22), dated 16 January 2013,

j. Prior DD Form 293, dated 25 June 2012,

k. DA Form 2-1 ( 4 pages),

l. emails, dated 11 July 2013 and 25 July 2013 (6 pages),

m. Decision letter from the Army Discharge Review Board, dated 9 October 2013,

n. College Transcript, dated 2 April 2013,

o. Letters from Mr. K and Mr. B, dated 3 November 2008, indicating his outstanding performance in the ICE-Detention and Deportation Class, and the ICE Detention and Removal Operations Basic Law Enforcement Training Program,

p. Letters of support, dated 8 September 2011 and 14 September 2011, and

q. Letter from the Adjutant General for the State of Illinois, dated 17 January 2013, which denied the applicant’s request for an upgrade of his characterization of service.

POST-SERVICE ACTIVITY:

The applicant states he has served as an Immigration Enforcement Agent with the Department of Homeland Security ICE. He graduated with distinguished honors from the Federal Law Enforcement Training Center, was first in his class in firearms and physical training and third in his class in academics, received three letters outlining his achievements for an distinguished expert marksmanship score in the Practical Pistol Course, outstanding honor graduate and physical fitness graduate from the ICE Detention and Removal Operations Basic Law Enforcement Training Program.

REGULATORY AUTHORITY:

1. National Guard Regulation (NGR) 600-200 and Army Regulation 135-178 govern procedures covering enlisted personnel management of the Army National Guard. Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard. Paragraph 8-35i (1) of that regulation provides in pertinent part that individuals can be separated for misconduct-abuse of illegal drugs.

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.

3. NGR 600-200, Chapter 8, Section IX, paragraph 8-34, provides that reentry eligibility codes are determined at separation. They provide information concerning the Soldiers service in the ARNG, which will be considered upon future enlistment. At the time of separation, a Soldier is assigned an appropriate reentry eligibility code. NGR 600-200, Chapter 8-35i (1), shows that a Soldier discharged for abuse of illegal drugs will be assigned a reentry code of RE 3.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants available record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The available record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army National Guard and a Reserve of the Army. However, the record does contain a properly constituted NGB Form 22 which indicates the applicant was unavailable for signature. This document identifies the reason and characterization of service. The NGB Form 22 shows the applicant was discharged by reason of misconduct (abuse of illegal drugs) with a characterization of service general, under honorable conditions.

3. The applicant requested his narrative reason for separation and reentry eligibility (RE) code be changed also. However, the applicant was separated under the provisions of Chapter 6, NGR 600-200, paragraph 6-35i, with a general, under honorable conditions discharge. The narrative reason specified by the governing regulation for a discharge under this regulation is Misconduct (Abuse of Illegal Drugs). NGR 600-200, Enlisted Personnel Management, Appendix F, Table F-1, governs preparation of the NGB Form 22 and indicates the entry of the narrative reason for separation, entered in block 23 will be the authority cited on the discharge order and/or the reason from Chapter 6 and the reentry eligibility code, entered in block 26 of the form, will be the cited reason from paragraph 6-35.

4. The applicant contends he was deprived his mandated procedural due process prior to his discharge. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was not afforded due process prior to his discharge. The applicants statements alone does 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 applicant also contends he had eight outstanding years of service as a Soldier and continued service to the United States. The applicant’s contentions were carefully considered. However, a determination as to the merit of these contentions cannot be made because the facts and circumstances leading to the discharge are unknown. The applicant must meet the burden of proof by providing the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration. 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.

6. Additionally, notwithstanding the propriety of the applicants discharge the service record indicates that someone in the discharge process erroneously amended the applicant’s separation documents by changing the separation authority from NGR 600-200, paragraph 8-35h, alcohol or other drug abuse rehabilitation failure to NGR 600-200, paragraph 6-35i, misconduct-abuse of illegal drugs.

7. Therefore, the characterization of service being both proper and equitable and the presumption of government regularity; recommend the Board deny relief. However, recommend the Board make the following recommendation to change the applicants NGB Form 22, block 23, separation authority to NGR 600-200, paragraph 8-35i (1), misconduct-abuse of illegal drugs based on the separation authority in effect at the time of discharge.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 10 September 2014 Location: Washington, DC

Did the Applicant Testify, No

Counsel: Crisp & Associates, LLC, Attn: Mr. Donald W. Gordon, Esquire, 3540 North Progress Avenue, Suite 209, Harrisburg, PA 17110

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 NGB Form 22a: Yes
Change Characterization to: No Change
Change Reason to: Misconduct-abuse of illegal drugs
Change Authority for Separation: NGR 600-200, paragraph 8-35i (1),
Change RE Code to: NA
Grade Restoration to: NA
Other: Thru: Chief, National Guard Bureau Date: 15 September 2014
To: Adjutant General, State of Illinois

The Army Discharge Review Board, under the provisions of Title 10, United States Code, Section 1553, in the case of the applicant named in Page 1, recommends the applicant be considered for a change of his discharge by the Adjutant General, State of Illinois, with issuance of a new NGB Form 22a, as follows:

( X ) Change narrative reason for discharge to Misconduct-abuse of illegal drugs.
( X ) Change authority to NGR 600-200, Ch 8-35i (1)

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) AR20140002923

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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