IN THE CASE OF: BOARD DATE: 15 May 2015 CASE NUMBER: AR20140002571 ___________________________________________________________________________ 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 an upgrade of his discharge from general, under honorable conditions to honorable. 2. The applicant states, in effect, that he was unjustly and unfairly discharged and that his discharge was not handled properly by his chain of command. The applicant contends his discharge was inequitable and improper because it was based solely on one isolated incident in 39 months of honorable and meritorious service with no other adverse action and the separation authority failed to conduct an investigation; his discharge was inappropriate because he was not given an adequate opportunity at rehabilitation or redemption; his discharge constituted double jeopardy in the eyes of the law, he was already punished for the offense under UCMJ Article 15 proceedings; his discharge was invalid because of Army Directive 2012-07; his attempt to get help for his marijuana use was misconstrued into an admission of guilt and used against him in a CID investigation; he was not properly counseled concerning earned education benefits; and his rights were violated in accordance with AR 635-200. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 February 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 15 March 2005 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, Chapter 14 paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: HHD EN Bn, Fort Drum, NY f. Current Enlistment Date/Term: 14 June 2004/OAD, NIF g. Current Enlistment Service: 9 months, 2 days h. Total Service: 3 years, 3 months, 3 days i. Time Lost: None j. Previous Discharges: ARNG-011213-020402/NA IADT-020403-020719/HD ARNG-020720-040613/NA (Concurrent Service) k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 12B10, Combat Engineer m. GT Score: 117 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, GWOTSM, AFRM-w/M Device, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes (Submitted by the applicant) u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army National Guard on 13 December 2001, for a period of 8 years. He was 18 years old at the time of entry and a high school graduate. His DD Form 214 indicates on 14 June 2004, he was ordered to active duty in support of Operation Iraqi Freedom. His record indicates he achieved the rank of SPC/E-4; however, his record does not contain any evidence of acts of valor or meritorious achievements. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, documents submitted by the applicant indicates on 9 November 2004, 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, possessing, and distributing a controlled substance (Marijuana) and subsequent testing positive for Cannabinoid. 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 23 November 2004, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions, and did not submit a statement on his 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 11 November 2004, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provision of Chapter 14, paragraph 14-12c(2), AR 635-200 for abuse of illegal drugs. 5. The applicant provided a second memorandum dated 16 February 2005, indicating the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provision of Chapter 14, for abuse of illegal drugs. 6. The applicant was discharged from the Army on 15 March 2005, 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, with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 7. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Active Duty Orders 160-241, dated 8 June 2004. 2. Active Duty Orders 082-056, dated 23 March 2005. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, Army Substance Abuse Program (ASAP) Enrollment document dated 15 September 2004, which shows the applicant was self referred as a result of being arrested for suspicion of possession of marijuana, a CID Report, dated 17 September 2004, which shows the applicant was the subject of investigation for the wrongful possession and use of marijuana, Article 15, imposed on 28 September 2004, for wrongfully using marijuana 10 September 2004. The punishment consisted of reduction to the grade of E-3 and extra duty and restriction for 14 days (CG), developmental counseling form for testing positive on a command directed urinalysis(040913) and recommendation for separation under the provisions of Chapter 14-12c, AR 635-200, memorandum dated 9 November 2004, 11 November 2004, 23 November 2004, 9 December 2004, and 16 February 2005, command group document cover sheet, orders 074-1005, agent's investigative report, report of mental status evaluation, report of medical examination, untitled document dated 28 September 2004, separation documents, report of toxicological examination, commander's evaluation, definition of limited use policy per AR 600-85, Army Directive 2012-07, extracts from chapter 3 and 14 of AR 635-200, transcripts (2), and a copy of his DD Form 214 for the period of service under review. POST-SERVICE ACTIVITY: None was provided by the applicant. 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. 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, 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 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 Article 15 for violation of the Uniform Code of Military Justice by using, possessing, and distributing a controlled substance (Marijuana) and subsequent testing of positive for Cannabinoid. 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 his discharge was inequitable because it was based on an isolated incident. Although an isolated 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 an isolated incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 5. The applicant contends an investigation into his character of service was not taken into consideration; however, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. It appears the applicant’s generally good record of service was the basis for his receiving a general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge. However, his misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge. 6. The applicant contends he was not given an adequate opportunity at rehabilitation or redemption. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. 7. The applicant contends his discharge was improperly executed according to the limited use policy because his attempt to get help for his marijuana use was misconstrued into an admission of guilt and used against him. He contends he self-referred to the ASAP; however, the ASAP enrollment document submitted by the applicant shows he was self referred as a result of being arrested for suspicion of possession of marijuana. Further, the applicant's admission that he was going to use marijuana and his failure to request rehabilitation at the same time does not qualify as an admission of illegal drug use with an indication of a desire to receive help. It appears the self referral block was incorrectly checked. 8. The applicant contends his discharge constituted double jeopardy. Because of the applicant's misconduct he was punished under UCMJ action. He was aware that by using illegal drugs, he knowingly risked a military career; thereby, his discharge was the appropriate administrative action for the command to take. 9. 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 his discharge was inequitable or improper. In fact, the applicant’s Article 15 for the wrongful use of marijuana justifies reason for discharge. The applicant’s statements alone do not overcome the government’s 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. 10. Furthermore, 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. 11. 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: 15 May 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) AR20140002571 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1