IN THE CASE OF: Mr. BOARD DATE: 4 February 2015 CASE NUMBER: AR20140001598 ___________________________________________________________________________ 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 APPLICANT’S 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, in addition to providing the circumstances and events surrounding his discharge, he does not feel he should have been discharged for illegal use of drugs when his unit was already in the process of discharging him for DWI, which he was never convicted of. He is a good person trying to remain good but with his current discharge, it is difficult for him. An upgrade would allow him to return to school and better himself and his daughter’s future. In a separate self-authored statement, he adds, in pertinent part and in effect, that he is not a drug user and it was a onetime incident due to all the stress and hardships he and his family was going through. He worked hard in the Army, becoming airborne qualified, etc. He is learning from his mistake. He just cannot afford not having an honorable discharge for school purposes and job careers. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 22 January 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 23 December 2013 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR635-200, Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: A Co, 407th BSB, 2nd BCT, 82nd Airborne Division, Fort Bragg, NC f. Current Enlistment Date/Term: 31 July 2012, 3 years, 19 weeks g. Current Enlistment Service: 1 year, 3 months, 25 days h. Total Service: 1 year, 3 months, 25 days i. Time Lost: 28 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 88M1P, Motor Transport Operator m. GT Score: 96 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM; GWOTSM; ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 31 July 2012, for a period of 3 years and 19 weeks. He was 22 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 88M1P, Motor Transport Operator. His record documents no acts of valor or significant achievement. He completed 1 year, 3 months, and 25 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 26 November 2013 (as acknowledged by the applicant), 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 marijuana. 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 26 November 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected not to 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 26 November 2013, 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 23 December 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 applicant's record shows 28 days of time lost due to military confinement during the period 26 November 2013 through 23 December 2013. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There is no record of any counseling statements. 2. Although the record does not contain any actions under the UCMJ, the unit commander’s forwarding memorandum indicates a nonjudicial punishment being attached to the separation packet as enclosure 2. 3. The applicant’s submitted evidence provides the following: a. Article 15, dated 7 November 2003, for DUI (131003). The punishment consisted of a reduction to the grade of E-1, forfeiture of $758 per month for one month (suspended), and 45 days of extra duty and restriction, (FG). b. A positive urinalysis report: IU, Inspection Unit, 30 October 2013, marijuana. 4. DA Form 4187, Personnel Action, dated 9 December 2013, indicates the applicant’s duty status changed from PDY to Confinement, effective 26 November 2013. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided with his online application, a self-authored statement and listing of documents enclosed; an ID and social security card; daughter’s birth certificate; birthday party order summary, dated 28 May 2013; items shipping record; daughter’s birthday invitation; wedding celebration invitation; facility agreement, dated 15 May 2013; DD Form 214 for service under current review; discharge orders; flagging action, dated 8 September 2013; MFR, subject: Letter of Intent, dated 15 October 2013; record of Article 15 with punishment worksheet, dated 7 November 2013; urinalysis lab report, dated 7 November 2013; unit commander’s forwarding memorandum, undated; 1st page of separation authority’s decision memorandum, dated 26 November 2013; DA Form 4187, dated 9 December 2013; four character references and supporting letters; and a apprenticeship class registration form. POST-SERVICE ACTIVITY: The applicant provided none; however, a character reference letter indicates he is working part-time. 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 member’s 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 Soldier’s 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, 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 applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s 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 applicant’s 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 applicant’s record of service was marred by an Articles 15 action for violation of the Uniform Code of Military Justice. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. 4. The applicant contends the discharge was unjust because he does not feel he should have been discharged for illegal use of drugs when his unit was already in the process of discharging him for a DWI, which he was never convicted of. 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 sufficient evidence to support the contention that he may have been unjustly discriminated. In fact, the applicant’s Article 15 action justifies a serious incident of misconduct. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or sufficient evidence has been provided with the request for an upgrade of the discharge. 5. The applicant contends the event that led to his discharge of using marijuana was an isolated event. 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. 6. The applicant contends that he had good service which included being a hard worker and becoming airborne qualified. The applicant’s service accomplishments and the quality of his service prior to the incident 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 incident of misconduct or by the documented action under an Article 15 of the Uniform Code of Military Justice. 7. The applicant has expressed his desired to have better job opportunities and the benefits of the GI Bill. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities or to obtain veteran’s benefits. Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 8. The applicant contends his misconduct was mitigated by the stress and hardships he and his family were going through. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 9. 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 applicant’s discharge is commensurate with his overall service record. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case. 10. 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: 4 February 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) AR20140001598 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1