1. Applicant's Name: a. Application Date: 21 November 2016 b. Date Received: 25 November 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change reentry code that corresponds with the narrative reason for his discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant was found guilty and received an Article 15 for a trace amount of cocaine. At the time, he received erroneous legal advice as to the strength of the evidence against him and was wrongly told that there was no defense to this allegation and that his only recourse was to accept the non-judicial punishment (NJP). He is not responsible for the Army's mistake in finding him guilty on a shoddy test result and discharging him without adequate legal advice or representation. His positive result was so low that it was likely error since he did not abuse any drugs. Acceptance of the NJP resulted in an involuntary separation. This erroneous advice was unjust and resulted in a loss of rights and no defense of any kind being presented as to this allegation. An upgrade would allow him to seek reenlistment. Per the Board's Medical Officer, based on the information available for review at the time, a review of medical records found a diagnosis of Cocaine Related Disorder, which was diagnosed during first ASAP appointment following misconduct. He had no previous behavioral health history and his VA medical records were void of any behavioral health conditions. In a records review conducted at Arlington, VA on 31 January 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, Paragraph 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 23 August 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 August 2011 (2) Basis for Separation: The applicant tested positive for cocaine. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 August 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 11 August 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 October 2009 / 4 years, 21 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 1 year, 10 months, 11 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (4 July 2010 to 25 October 2010), (15 February 2011 to 7 July 2011) f. Awards and Decorations: NDSM; ACM-2CS; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of the DD Form 2624, dated 16 May 2011, shows that the applicant tested positive for cocaine during an IU (Inspection, Unit) urinalysis conducted on 10 May 2011. Negative counseling statement for failing the urinalysis test given upon his return from leave. FG Article 15, dated 14 July 2011, for wrongfully using cocaine between 2 May 2011 and 10 May 2011. The punishment consisted of a reduction to E-1, forfeiture of $733 pay per month for two months (suspended), and 45 days of extra duty and restriction. Report of Mental Status Evaluation, dated 20 July 2011, shows that the "AXIS I" diagnosis of "Cocaine Related Disorder." i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 21 November 2016, with attorney-authored brief; DD Form 214; counseling statements, dated 18 May 2011; unit commander's report, dated 10 August 2011; applicant's election of rights response, dated 4 August 2011; unit commander's notification, dated 3 August 2011; FG Article 15, dated 14 July 2011; ASAP report, dated 17 May 2011; Specimen Custody Document - Drug Testing with Electronic Copy of the DD 2624, dated 16 May 2011, and background check and Specimen Data; picture depicting Sweet'N'Low; Nano-gram information sheet; three character reference statements; and applicant-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): 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. Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a or 14-12b as appropriate. 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, paragraph 14-12c(2), Misconduct (Drug Abuse). 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change reentry code that corresponds with the narrative reason for his discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. 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. 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 marred the quality of his service that ultimately caused his discharge from the Army. The applicant contends the discharge was inequitable because he received an erroneous legal advice as to the strength of the evidence against him and was wrongly told that there was no defense to the allegation; that his only recourse was to accept the non-judicial punishment, the basis for his discharge; that the Army made a mistake in finding him guilty on a shoddy test result and discharging him without adequate legal advice or representation that his positive result was so low that it was likely error since he did not abuse any drugs; and the erroneous advice was unjust and resulted in a loss of rights and no defense of any kind being presented as to the allegation. 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge. The applicant desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 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 discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 31 January 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a new DD-214/Issue new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160019657 1