IN THE CASE OF: Mr. BOARD DATE: 25 February 2015 CASE NUMBER: AR20140004868 ___________________________________________________________________________ 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 uncharacterized discharge characterization to honorable or general, under honorable conditions. 2. The applicant states, in effect, he was falsely accused and discharged based on hearsay. The applicant did not present any issues of equity or propriety for the Board to consider. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 18 March 2014 b. Discharge Received: Uncharacterized c. Date of Discharge: 23 March 2013 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: Battery D, 1st Battalion, 40th Field Artillery, Fort Sill, OK f. Current Enlistment Date/Term: 16 October 2012/17 weeks (ADT) g. Current Enlistment Service: 5 months, 8 days h. Total Service: 9 months, 23 days i. Time Lost: None j. Previous Discharges: ARNG, 120531-121015, NA k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: None m. GT Score: NIF n. Education: Associates Degree o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: None r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army National Guard (ARNG) on 31 May 2012, for a period of 8 years. He was 22 years old at the time of entry and a college graduate. His record is void of any significant acts of valor and achievement. He completed 9 months and 23 days of creditable military service. When his discharge proceedings were initiated, he was serving in Fort Sill, OK. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 20 February 2013, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense), specifically for wrongful use and distribution of Percocet and receiving a FG Article 15 for misconduct. 2. Based on the above misconduct, the unit commander recommended an uncharacterized discharge. 3. On 26 February 2013, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in 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 an uncharacterized discharge. 4. On 14 March 2013, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of uncharacterized. 5. The applicant was separated on 23 March 2013, under the provisions of Army Regulation 635-200, Chapter 14-12c, with an uncharacterized discharge, an SPD code of JKQ, and an RE code of 3. 6. On 19 March 2013, DA Headquarters, USA Garrison, Fort Sill, Fort Sill, OK, Orders Number 078-1334, dated 19 March 2013, discharged the applicant from the Reserve of the Army and returned him to the ARNG effective 23 March 2013. 7. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Several counseling statements, dated between 14 January 2013 and 8 February 2013, for recommendation for Chapter 11 and Chapter 14 separation, bar to reenlistment, suspension of favorable actions, and wrongful distribution of prescription pills (Percocet). 2. Field Grade Article 15, dated 1 February 2013, for wrongful distribution of Percocet (121219-130107). The punishment consisted of a reduction to the grade of E-1 and forfeiture of $379 pay per month for two months. 3. Report of Mental Status Evaluation, dated 25 January 2013, reflects the applicant had a clear and normal thought process, was mentally responsible and had no psychiatric disease or defect which warranted disposition through medical channels. The applicant had a negative screening for Post Traumatic Stress Disorder and mild Traumatic Brain Injury. 4. A CID Report, dated 14 January 2013, reflects the applicant was the subject of an investigation for wrongful distribution of Percocet. 5. Orders Number 22905, DOD Military Entrance Processing Station, Charlotte, NC, dated 10 October 2012, ordered the applicant to active duty for training. The applicant was ordered to report to basic combat training on 16 October 2012 and advanced individual training on 22 January 2013. 6. NGB Form 22 (Record of Separation and Record of Service), reflects the applicant was discharged from the North Carolina ARNG on 23 March 2013, with an uncharacterized discharge, under the provisions of NGR 600-200, Chapter 6-35i(1), acts or patterns of misconduct, with a reentry code of 3. The applicant did not authenticate the form with his signature. 7. Discharge Orders Number 078-1334, dated 19 March 2013. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 15 September 2013, a DD Form 214, an extract of his discharge packet, Discharge Orders Number 078-1334, dated 19 March 2013, a letter from ARBA Congressional and Special Actions, dated 14 March 2014, an email from Mr. H and a letter from Congresswoman F, dated 5 March 2014, two letters of support, Consent Form for release of personal records, dated 15 September 2013, and a letter from Ms W, National Guard Bureau, dated 27 February 2014. POST-SERVICE ACTIVITY: The applicant did not provide any in support of his 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 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, his military records, 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 evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the uncharacterized description of service accurately reflects the applicant’s overall record of service. An uncharacterized separation means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. 3. The separation authority approved the applicant's discharge as entry-level status, with the description of service as uncharacterized. Army Regulation 635-200 provides in pertinent part, that a Soldier is in entry-level status for the first 180 days of continuous active duty. The purpose of the entry-level status is to provide the Soldier a probationary period. Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status. The Regulation also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status. 4. A general, under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct or performance of duty. The applicant’s service record indicates no such unusual circumstances were present and did not warrant an honorable discharge. 5. The applicant contends he was falsely accused and discharge on hearsay. 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 unjustly discriminated. In fact, the applicant’s FG Article 15 and numerous negative counseling statements justify his 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. 6. The records show the proper discharge and separation authority procedures were followed in this case. 7. 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: 25 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) AR20140004868 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1