IN THE CASE OF: BOARD DATE: 24 July 2015 CASE NUMBER: AR20140007727 ___________________________________________________________________________ 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 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. Counsel requests an upgrade of the applicant’s under other than honorable conditions discharge to honorable and a change to the narrative reason for separation. 2. Counsel states, in effect, the applicants discharge is inequitable and improper because while receiving treatment for significant mental health and physical ailments, he was recommended for administrative separation. Counsel contends, the applicant was in no mental or physical condition to intelligently weight his options and was required to make elections. He contends, the applicant erroneously waived his right to an administrative separation board. Counsel states, the applicant had a traumatic brain injury and had been physically assaulted and these incidents resulted in two Line of Duty investigations. He states, the applicant was found not fit for duty due to his injuries and that MG B directed the applicant’s case be processed through the physical disability system in lieu of administrative separation. Counsel states in August 2011, the applicant was notified of the commander’s intent to separate him from the Army; however, he contends the applicant did not receive a copy of the notification memorandum or supporting documentation. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 30 April 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 5 August 2011 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Chapter 14-12c (2), JKK, RE-4 e. Unit of assignment: B Btry, 2-3 FA Regiment, Fort Bliss, TX f. Current Enlistment Date/Term: 19 March 2008/4 years, 19 weeks g. Current Enlistment Service: 3 years, 2 months, 24 days h. Total Service: 3 years, 2 months, 24 days i. Time Lost: 54 days j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 13D10, Field Artillery Automated Tactical Data System Specialist m. GT Score: NIF n. Education: College Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: GWOTSM, ASR r. Administrative Separation Board: NIF s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 19 March 2008, for a period of 4 years and 19 weeks. He was 28 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 3 years, 2 months, 24 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Bliss, TX. 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, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. 2. The DD Form 214 indicates that on 5 August 2011, the applicant was discharged under the provisions of Chapter 14-12c(2), AR 635-200, for misconduct, (drug abuse), with a characterization of service of under other than honorable conditions. The DD Form 214 also shows a Separation Program Designator (SPD) code of JKK and a reentry (RE) code of 4. 3. The applicant’s available record does not show any recorded actions under the UCMJ. However, he was separated as a PVT/E-1 and the action that caused his reduction is not contained in the service record. Further, the DD Form 214, block 29 shows two periods of lost time from 16 December 2008-8 October 2009 and 28 February 2011-27 March 2011. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: DD Form 214 dated 5 August 2011.None EVIDENCE SUBMITTED BY THE APPLICANT: 1. DD Form 293, dated 22 April 2014. 2. DD Form 214 3. Counsel’s self-authored statement, dated18 April 2014. 4. DA Form 3349 (Physical Profile), dated 13 March 2009, reflects initiation of a medical evaluation board. 5. WBAMC-Psychiatric Medical Evaluation Board, dated 17 July 2009, reflects the applicant was referred to a medical board for traumatic brain injury sequelae. The applicant was found to have normal thought content and diagnosed with post-concussion syndrome, cannabis use, status post traumatic brain injury and legal and occupational stressors. In addition, it indicated the applicant was processed under the provisions of Chapter 14-12c, for misconduct predating his injury, that included AWOL and drug use. 6. Medical Evaluation Board NARSUM, dated 7 December 2009, reflects the applicant had a history of concussion, cognitive disorder (NOS), and cannabis use and/or abuse. 7. WBAMC Progress Notes, dated 4 August 2009, reflects the applicant tested positive for cocaine, opiates, cannabinoids and had a past medical history of TBI and prior drug use. 8. Memorandum from MG B, dated 24 June 2010, reflects after review of both the administrative separation file and medical evaluation board results, directed the applicant’s case be processed through the physical disability system in lieu of separation under the provisions of AR 635-200, Chapter 14-12c (2). 9. Counseling statement, dated 17 March 2009, for a positive urinalysis for marijuana on 9 January 2009 after being AWOL from his unit. 10. Military Police Report, dated 22 January 2009, reflects the applicant was the subject of an investigation for possession of marijuana. There is also a report, dated 4 August 2009, that reflects the applicant was the victim of an assault. 11. Patient Laboratory Inquiry, dated 22 January 2009, reflects the applicant had a positive test for cannabinoids. 12. Mental Health Evaluation, dated 16 July 2009, reflects the applicant was diagnosed with post-concussion syndrome, cannabis abuse, status post traumatic head injury, and legal and occupational stressors. 13. DA Form 2627 Continuation Sheet, reflects an item under the provisions of Article 15, UCMJ of wrongful possession of some amount of marijuana on 22 January 2009 (FG). The applicant and LTC W authenticated the document. 14. Numerous medical documents regarding the applicant’s treatment. 15. NPR article, dated 9 June 2010, and 1 July 2010. 16. Line of Duty Investigation Reports and Rebuttal Statements. 17. 10 photographs depicting a sidewalk and building area. POST-SERVICE ACTIVITY: Counsel did not provide any in support of the applicant’s 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. 4. Army Regulation 635-200, paragraph 1-33c, stipulates that disability processing is inappropriate if the conditions in paragraph 1-33b(1)(a) and (b) do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent. 5. 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 14-12c(2), misconduct (drug abuse). 6. 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 OF ISSUES: 1. Counsel’s request for an upgrade of the characterization of the applicant’s discharge was carefully considered. However, after examining the applicant’s available record of service, his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214, which was authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. 3. The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse), with a characterization of service of under other than honorable conditions. Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. Counsel also requests a change to the applicant’s narrative reason for discharge. However, 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 14-12c (2), for misconduct-abuse of illegal drugs. No deviations are authorized. 5. Counsels contentions that the applicant’s discharge was inequitable and improper because the applicant was not in a mental or physical condition to intelligently weigh his choices were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's disposition through medical channels or his quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 6. 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 Board’s consideration because they are not available in the official record. 7. Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 24 July 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: Yes [redacted] 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) AR20140007727 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1