IN THE CASE OF: BOARD DATE: 20 August 2014 CASE NUMBER: AR20140007152 ___________________________________________________________________________ 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 general, under honorable conditions discharge to honorable. 2. The applicant states, in effect, the discharge was unjust. He contends that the discharge was based on one isolated incident that was never proven, but simply an accusation, and was not given the opportunity to bring witnesses to speak on his behalf. He contends that regulatory guidance regarding suspected drug abuse was not followed; he was never referred to the Army Substance Abuse Program (ASAP). Applicant further contends that he was not informed of the mandatory separation briefings and that he did not have just time to turn in his gear. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 21 April 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 12 February 2013 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200 Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: HHC, 702d Brigade Support Battalion (Rear) (Provisional), Joint Base Lewis-McCord, WA f. Current Enlistment Date/Term: 19 January 2011/3 years, 21 weeks g. Current Enlistment Service: 2 years, 24 days h. Total Service: 2 years, 3 months, 16 days i. Time Lost: None j. Previous Discharges: DEP, 101027-110118, NA k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 92G1O, Food Service Operations m. GT Score: 88 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: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 19 January 2011, for a period of 3 years and 21 weeks. He was 22 years old at the time of entry and a high school graduate. He completed 2 years and 24 days of active duty service. When his discharge proceedings were initiated, he was serving at Joint Base Lewis-McChord, Washington. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 16 January 2013, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, for misconduct (serious offense). Specifically for wrongful possession of “Spice” and “Spice” paraphernalia on or about 6 August 2012. 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 16 January 2013, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and elected not to 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 a general, under honorable conditions discharge. 4. On 23 January 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 separated on 12 February 2013, under Army Regulation 635-200, Chapter 14-12c for misconduct (serious offense), with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An MP Report, dated 12 August 2012, that indicates the applicant was the subject of an investigation for failure to obey General Order (Drug Paraphernalia) and failure to obey General Order (Pep Spice) on 6 August 2012. 2. An Article 15, dated 15 October 2012, for wrongful possession of drug paraphernalia (120806). The punishment consisted of reduction to the grade of E-1, forfeiture of $745 per month for two months (suspended), 45 days of extra duty and restriction (FG). 3. DA Form 3822 (Report of Mental Status Evaluation), dated 10 December 2012, reflects the applicant was evaluated as requested by the unit commander for a mental status evaluation for Chapter 14-12c separation. It is noted in Section VIII (Additional Comments), the applicant denies any current substance use or abuse. 4. Discharge Order Number 035-0034, dated 4 February 2013, Director of Human Resources, Military Personnel Division, Joint Base Lewis-McChord, Washington discharged the applicant from the Regular Army effective 12 February 2013. EVIDENCE SUBMITTED BY THE APPLICANT: None provided with the application. POST-SERVICE ACTIVITY: None provided with the 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 military records and the issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms that 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. By the misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice, and a Military Police Report in reference to the applicant being investigated for possessing drug paraphernalia and spice. 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 requests an upgrade of his characterization of service to honorable and contends he regrets his actions and has learned from his past mistakes. 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. 5. The applicant contends the incident that caused his discharge was the only one in his entire Army career. 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. 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. 6. The applicant contends the reason for his discharge was based on an accusation and was never proven. However, 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. 7. The applicant contends the discharge was unjust because he was not afforded the opportunity to bring in witnesses to speak on his behalf. 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 Article 15 justifies his separation of service based on the misconduct. 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. 8. The applicant contends he was never referred to ASAP. 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. 9. The applicant contends his discharge should be upgraded because he was not informed of any of the mandatory briefings and that he did not have just time to turn in his gear. However, the issues the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. 10. The records show the proper discharge and separation authority procedures were followed in this case. 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: 20 August 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None 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: No Change Change RE Code to: No Change 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) AR20140007152 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1