IN THE CASE OF: Mr. BOARD DATE: 10 June 2015 CASE NUMBER: AR20140008726 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation that follows, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding his discharge (unfounded CID Report), mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to “Misconduct, Serious Offense.” This action entails a change to the reentry eligibility (RE) code to 3. 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 characterization to honorable. 2. The applicant states, in effect, there was no evidence to support his involvement in the misconduct. He did not present any issues of propriety or equity for the Board to consider. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 15 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 30 March 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Chapter 14-12c(2), JKK, RE-4 e. Unit of assignment: C Company, 299th Brigade Support Battalion, Fort Riley, KS f. Current Enlistment Date/Term: 8 March 2010/4 years g. Current Enlistment Service: 2 years, 23 days h. Total Service: 2 years, 23 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 68W10, Health Care Specialist m. GT Score: 108 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (101107-111026) q. Decorations/Awards: NDSM, GWOTSM, ICM-CS, ASR, OSR, CMB 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 Regular Army on 8 March 2010, for a period of 4 years. He was 20 years old at the time of entry and a high school graduate. He served in Iraq and earned a CMB. He completed 2 years and 23 days of active duty service. When his discharge proceedings were initiated, he was serving in Fort Riley, KS. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 1 March 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c(2). Specifically for the wrongful possession of synthetic cannabinoids. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 6 March 2012, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and elected 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. The separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was separated on 30 March 2012, under the provisions of Army Regulation 635-200, Chapter 14-12c (2), with a general, under honorable conditions discharge, an SPD code of JKK, and a RE code of 4. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 8 February 2012, for wrongful possession of synthetic cannabinoids. The punishment consisted of a reduction to the grade of E-1, forfeiture of $745 per month for two months (suspended) and 45 days of extra duty (FG). 2. A counseling statement, dated 18 August 2011, for suspicion of contraband. 3. A CID Report, dated 14 December 2011, reflects the applicant was the subject of an investigation for wrongful possession of spice, which was unfounded and failure to obey a general order. 4. An email, dated 3 January 2012, reflects the compounds found during the health and welfare inspection in Iraq were not listed on the Federal Banned Controlled Substance List, they fell within the Kansas Class of chemicals specifically outlawed as controlled substances and was a violation of Kansas law and USFI GO-1a paragraph 3(d). EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 3 April 2014, a DD Form 214, a self-authored statement, dated 1 April 2014, and a letter of support from Ms. H. 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 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 and a negative counseling statement. 3. Further, the synthetic cannabinoids found in the applicant’s room during a health and welfare inspection, although not listed on the Federal Banned Controlled Substance List, were illegal based on the Secretary of the Army’s Prohibited Substances memorandum, dated 10 February 2011, which prohibited the possession of any synthetic cannabinoids by Soldiers and was nevertheless a violation of USF-I GO1A. Moreover, the CID Report, dated 14 December 2011, found probable cause to believe the applicant violated the general order. 4. 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. 5. The applicant contends he was suffering from PTSD and subsequently diagnosed by the Department of Veterans Affairs with PTSD, depression, anxiety and night terrors. The applicant did not provide any supporting documentation to support his contention the misconduct contributed to his PTSD diagnosis; therefore, his statements alone do not overcome the presumption of government regularity. 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. Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding his discharge (unfounded CID Report), mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to “Misconduct, Serious Offense.” This action entails a change to the reentry eligibility (RE) code to 3. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 10 June 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 5 No Change: 0 Reason Change: 5 No Change: 0 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Misconduct (Serious Offense) Change Authority for Separation: AR 635-200, Chapter 14-12c Change RE Code to: 3 Grade Restoration to: NA Other: Separation Program Designator (SPD) code JKQ 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) AR20140008726 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1