SAMR-RB 25 September 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20150017113 1 . Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 4 April 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as honorable and showing the narrative reason for his separation as "Secretarial Authority" with the appropriate regulatory authority and separation code. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 25 January 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017113 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017113 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his application is remanded to the Army Discharge Review Board for reconsideration. ______________x___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017113 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, referral of his request for reconsideration for upgrade of his general, under honorable conditions discharge to the Army Discharge Review Board (ADRB). 2. The applicant states that, on 29 July 2013, he applied to the ADRB for a change to the characterization of his service and the narrative reason for separation. On 26 June 2014, under Case Number AR20130014434, dated 25 June 2014, the ADRB denied his request. a. On 14 November 2014, he requested reconsideration pursuant to Title 32, Combined Federal Regulation (CFR), section 70.8 (32 CFR 70.8) (Discharge review procedures), paragraph (b)(8)(vii) and Army Regulation (AR) 15-180 (ADRB), Appendix B (Department of Defense (DoD) Instruction (DoDI) 1332.28, Enclosure 3, section B, paragraph 8. The basis was the presentation of new, substantial, relevant evidence not available to the applicant at the time of the original review. b. In the ADRB's original consideration of his petition, that board identified specific deficiencies in the evidence he presented. The recommendation stated, "…it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., documented evidence regarding his enrollment in ASAP [Alcohol and Substance Abuse Program] and positive results of the urinalysis) or other credible evidence regarding his impropriety contentions." c. On 12 December 2014, under Case Number AR20140020112, the ADRB notified the applicant that it could not take action on his request since the board had previously heard his case on a records review. He was advised that the ADRB does not hear requests for travel panel. However, he could submit a new application if he and/or his designated counsel/representative had never had a personal appearance hearing before the ADRB in Washington, DC. d. On 6 January 2015, applicant's counsel submitted a letter to the ADRB asking whether the ADRB considers requests for reconsideration based upon new, substantial, relevant evidence pursuant to 32 CFR, section 70.8. e. On 3 February 2015, under Correspondence Number Q20150000173, applicant's counsel was advised that the ADRB had previously heard the applicant's case under Case Number AR20140020112 on a records review and that the ADRB does not hear requests for reconsideration. f. On 16 March 2015, the applicant requested a personal appearance hearing before the ADRB and his counsel forwarded the petition to the ADRB. g. On 7 April 2015, under Case Number AR20150005527, in a letter to the applicant, the ADRB acknowledged receipt of his petition. h. On 5 August 2015, the ADRB notified the applicant that his personal appearance before the ADRB was scheduled for 28 September 2015. A copy of the letter was not provided to applicant's counsel. i. On 16 September 2015, applicant's counsel advised the ADRB that the applicant did not respond within the required 30 days because notice was not provided to counsel. At that time, counsel informed the ADRB that the applicant requests withdrawal of his request for personal appearance hearing without prejudice. 3. The applicant provides copies of his applications and correspondence with the ADRB that have been summarized above. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, upgrade of the applicant's general, under honorable conditions discharge or, in the alternative, referral of his request for reconsideration for upgrade of his general, under honorable conditions discharge to the ADRB. 2. Counsel states the ADRB erred when it refused to consider the applicant's request for reconsideration. He states the applicant provided substantial relevant evidence that was not available to him at the time of the original review. a. Counsel provides a summary of the applicant's military service that included service in support of Operation Enduring Freedom in Afghanistan from 23 October 2010 to 10 October 2011 and his award of the Combat Infantryman Badge. b. He describes the applicant's receipt of nonjudicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ) for missing formation because had had been out the night before with a woman (who was not his wife). He confessed that he committed adultery. He also confessed he had been abusing alcohol and had used illegal drugs. He then voluntarily enrolled in ASAP and successfully completed the program. c. Administrative separation action was initiated for misconduct based on commission of a serious offense (adultery). However, the separation action also contained multiple references to his drug use and the results of a drug test, which was administered after he self-referred to ASAP. Counsel states this information provided by the chain of command should not have been included in the separation action and it tainted the separation authority's decision when he directed that the applicant be separated for misconduct based on drug abuse. d. Counsel argues that the applicant's discharge was improper because information protected by AR 600-85 (The ASAP) under the Army's Limited Use Policy was introduced by his command during the administrative separation proceedings. Specifically, it introduced information gained from: (1) his self-referral to ASAP; (2) admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to the ASAP and provided by Soldiers as part of the initial entry into ASAP; and (3) results of a drug or alcohol test administered solely as a required part of a DoD or Army rehabilitation or treatment program. e. However, the ADRB denied his application because "there is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was improper due to limited use policy violation." This was based on the absence of a record of voluntary admission and enrollment in ASAP or the documented positive urinalysis for marijuana and cocaine. Nonetheless, the ADRB changed his discharge from "Misconduct (Drug Abuse)" to "Misconduct (Serious Offense)." f. The applicant subsequently obtained copies of his records from the Fort Polk ASAP. These records were not provided to him when he requested a complete copy of his military medical records. g. The applicant's attempts to have his petition reconsidered by the ADRB were unsuccessful (as outlined by the applicant, above). 3. Counsel provides a 9-page brief (summarized above) in support of applicant's request. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 10 April 2008 for a period of 8 years. 2. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty for training (ADT) on 7 July 2008, was honorably released from ADT on 25 November 2008, and transferred to a USAR unit. It also shows he was awarded military occupational specialty (MOS) 88M (Cargo Specialist) and that he had completed 4 months and 24 days of net active service this period. 3. On 7 October 2009, he was honorably discharged from the USAR, in the rank of specialist (SPC)/pay grade E-4, to enlist in the Regular Army (RA). 4. The applicant enlisted in the RA, in the rank of SPC (E-4), on 8 October 2009 for a period of 3 years and 10 weeks. a. He was awarded military MOS 11B (Infantryman). b. He served in Afghanistan from 23 October 2010 to 10 October 2011. 5. On 15 February 2012, the applicant received NJP for violation of the UCMJ, at or near Fort Polk, LA: * on 31 January 2012, for wrongfully having sexual intercourse with a woman not his wife; this in violation of Article 134, UCMJ * on 1 February 2012, for failing to go at the time prescribed to his appointed place of duty; this in violation of Article 86, UCMJ a. It also shows the applicant: (1) was advised of his rights and afforded the opportunity to consult with counsel; (2) did not demand a trial by court-martial; and (3) requested a closed hearing; a person to speak in his behalf was not requested; and matters in defense, extenuation, and/or mitigation were presented in person. b. On 16 February 2012, in a closed hearing, having considered all matters presented, the Commander, 2nd Battalion, 30th Infantry Regiment, found the applicant was guilty of the misconduct. c. The punishment imposed consisted of reduction to private/pay grade E-1, forfeiture of $745 pay per month for 2 months, 45 days of extra duty, and 45 days of restriction. d. The applicant indicated that he would not appeal the NJP. 6. A DD Form 2808 (Report of Medical Examination), completed on 22 February 2012, shows the examining physician entered the Physical Profile (PULHES) of "111111." He noted that the applicant "has been in counseling for use of illegal drugs." He found the applicant qualified for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragrarph14-12c. 7. A DA Form 3822 (Report of Mental Status Evaluation) shows the applicant was evaluated by a behavioral health (BH) provider on 28 February 2012. a. The BH provider noted he had a history of cocaine and marijuana abuse. b. The applicant was found to be cooperative in behavior, normal in his perceptions, and he had no obvious cognitive impairments. He was occasionally impulsive, but not dangerous. c. The BH provider determined the applicant had the mental capacity to understand and participate in administrative proceedings, he could appreciate the difference between right and wrong, and he met medical retention standards. The applicant was psychiatrically cleared for administrative separation UP AR 635-200, paragraph 14-12, as deemed appropriate by command. 8. On 28 February 2012, the applicant's company commander notified the applicant that he was recommending him for separation UP AR 635-200, chapter 14, paragraph 14-12c, based on commission of a serious offense. a. The reasons for his proposed action were the applicant wrongfully committed adultery and he failed to report to his appointed place of duty. b. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he was recommending he receive a general, under honorable conditions characterization of service. 9. Following the notification, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. a. He requested consulting counsel and representation by military counsel, or civilian counsel at no expense to the Government. b. He indicated that he would not submit statements in his own behalf. c. He acknowledged that he understood he could receive a general, under honorable conditions or an under other than honorable conditions discharge, and that he may expect to encounter substantial prejudice in civilian life in the event either type of discharge was issued to him. d. The applicant and counsel (a judge advocate officer) each placed their signature on the document. 10. On 2 March 2012, the applicant's company commander recommended that the applicant be separated from the U.S. Army with a general, under honorable conditions discharge and that he not be transferred to the Individual Ready Reserve (IRR). The specific, factual reason for his action was the applicant "wrongfully committed adultery." a. The commander provided the following statement why he did not consider it feasible or appropriate to accomplish other disposition: "Soldier has engaged in patterns of misconduct and has repeatedly been marginally responsive to counseling and rehabilitative efforts over an extended period of time; thus making him unsuitable for continued service in the Army. Consequently, it is my assertion that common sense and sound judgment indicate that a rehabilitative transfer will serve no useful purpose and would have a marginal chance at producing a quality Soldier." b. The commander also provided this reason for his recommendation: "Worst Soldier in company. He is a cancer. Service member recently pissed hot for cocaine. Not a team player. He makes this unit worse just by his presence in formation. He [was] late for formation at least 9 times over the last month. I recommend he receive a general, under honorable conditions [discharge] and be barred from post. I base this on we need to get him out of here quickly. He requires constant [noncommissioned officer] supervision and his actions are getting progressively worse by the day." 11. The battalion commander recommended approval of the applicant's separation for misconduct based on commission of a serious offense with a general, under honorable conditions discharge. He indicated the basis for his recommendation: "Multiple drug offenses. Need to just get him out of the unit." 12. On 13 March 2012, the separation authority approved the recommendation for discharge of the applicant and directed separation UP AR 635-200, paragraph 14-12c(2), with a general, under honorable conditions discharge and directed that the applicant not be transferred to the IRR. 13. The DD Form 214 the applicant was issued discharged him, on 26 March 2012, with a general, under honorable conditions discharge UP AR 635-200, paragraph 14-12c(2), with a narrative reason of "Misconduct (Drug Abuse)" and a separation code of "JKK" [Misconduct (Drug Abuse)] with a reentry code of "4" [Non-waivable Disqualification]. 14. The applicant and his counsel submitted an application to the ADRB for an upgrade of the applicant's discharge and a change to the narrative reason for separation. a. An ADRB staff member reviewed the applicant's discharge and found, "[t]here are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for his discharge." b. On 25 June 2014, the ADRB determined that the character of his service was both proper and equitable and voted to deny the applicant relief. However, the ADRB also determined his due process was violated by not advising him of the specific reason of drug abuse being a basis for his separation. c. On the basis of equity, the ADRB directed that the reason for discharge, authority, separation code, and reentry code on the DD Form 214 be changed. d. Accordingly, the applicant's DD Form 214 was voided and he was issued a corrected DD Form 214. 15. The DD Form 214 he was issued shows he entered active duty this period on 8 October 2009 and he was discharged on 26 March 2012 with an under honorable conditions (general) discharge. He had completed 2 years, 5 months, and 19 days of net active service during this period; 4 months and 19 days of total prior active service; and 1 year, 1 month, and 9 days of total prior inactive service. a. It also shows in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the – * Army Achievement Medal * National Defense Service Medal * Afghanistan Campaign Medal with 2 Bronze Service Stars * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * North Atlantic Treaty Organization Medal b. It further shows in: * item 25 (Separation Authority): "AR 635-200, paragraph 14-12c" * item 26 (Separation Code): "JKQ" [Misconduct (Serious Offense)] * item 27 (Reentry Code): "3" [Not considered fully qualified for reentry at time of separation, but disqualification is waivable] * item 28 (Narrative Reason for Separation): "Misconduct (Serious Offense)" REFERENCES: 1. Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), in pertinent part, lists the following: * Article 134 (Adultery) and states that when determining whether adulterous acts constitute the offense of adultery under Article 134, commanders should consider the listed factors. Each commander has discretion to dispose of offenses by members of the command. As with any alleged offense, however, under Rules of Court-Martial (R.C.M.) 306(b) commanders should dispose of an allegation of adultery at the lowest appropriate level. The R.C.M. 306(b) discussion states, many factors must be taken into consideration and balanced, including, to the extent practicable, the nature of the offense, any mitigating or extenuating circumstances, the character and military service of the military member, any recommendations made by subordinate commanders, the interests of justice, military exigencies, and the effect of the decision on the military member and the command. The goal should be a disposition that is warranted, appropriate, and fair. * Article 112a (Wrongful use, possession, etc., of controlled substances) shows, in pertinent part, any person subject to this chapter who wrongfully uses, possesses, manufactures, or distributes a substance described in this subsection shall be punished as a court-martial may direct, as provided in the Table of Maximum Punishment. The substances referred to in the subsection are: opium, heroin, cocaine, amphetamine, lysergic acid, diethylamide, methamphetamine, phencyclidine, barbituric acid, marijuana, and any compound or derivative of any such substance. 2. AR 600-85 provides comprehensive alcohol and drug abuse prevention and control policies, procedures, and responsibilities for Soldiers of all components, Army civilian corps members, and other personnel eligible for ASAP services. Chapter 10 (Legal and Administrative Procedures, and Media Relations) addresses legal and administrative actions and procedures involving drug and alcohol use by Soldiers and civilian corps members. Section III (Legal Actions for Soldiers) shows in: * paragraph 10-10 (Law enforcement relationship to the ASAP), it is Army policy to encourage voluntary entry into the ASAP. * paragraph 10-11 (Limited Use Policy), the objectives of the Limited Use Policy are to facilitate the identification of Soldiers who abuse alcohol and other drugs by encouraging identification through self-referral to facilitate the rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention. When applied properly, the Limited Use Policy does not conflict with the Army's mission or standards of discipline. It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action. * paragraph 10-12 (Definition of the Limited Use Policy), unless waived under the circumstances listed in paragraph 10-13d of this regulation, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy is limited to, in pertinent part: * a Soldier's self-referral to the ASAP * admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to the ASAP and provided by Soldiers as part of their initial entry into the ASAP * the results of a drug or alcohol test administered solely as a required part of a DOD or Army rehabilitation or treatment program 3. AR 635-200, in effect at the time, sets forth the authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. A discharge under other than honorable conditions is normally considered appropriate under this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record. Paragraph 14-12 shows the conditions that subject Soldiers to discharge for acts or patterns of misconduct. Subparagraph 14-12c identifies commission of a serious military or civil offense as a condition, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. (Adultery and Abuse of illegal drugs are both serious offenses.) Paragraph 14-12c(2) shows that abuse of illegal drugs is serious misconduct. b. Chapter 3, 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. DISCUSSION: 1. The applicant and his counsel contend that his discharge should be upgraded to fully honorable because the ADRB erred in its original decision or, in the alternative, the applicant's petition should be referred to the ADRB because the ADRB failed to reconsider his request despite the new evidence provided. 2. The evidence of record shows the applicant's commander initiated separation action to discharge him from military service UP AR 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense (adultery). a. The chain of command recommended approval with a general, under honorable conditions characterization of service. b. In documents that forwarded the separation action, the company commander and battalion commander included information pertaining to the applicant's misconduct related to drug use. As a result, the separation authority approved the separation action UP AR 635-200, paragraph 14-12c(2), for misconduct based on drug abuse. 3. The applicant (and his counsel) petitioned the ADRB for review and upgrade of his discharge. The review conducted by the ADRB staff was deficient in that it did not identify the error pertaining to the separation authority, reason, separation code, and reentry code. a. The ADRB board members did identify the errors and, on 25 June 2014, voted to issue a corrected DD Form 214 (on the basis of equity) with the correct authority, reason, separation code, and reentry code. b. The ADRB Record of Proceedings (Case Number AR20130014434) failed to address matters of impropriety with regard to information being introduced in his separation packet that might fall under the purview of the Army's Limited Use Policy. The ADRB review relied upon the presumption of regularity in governmental affairs despite the fact that there was substantial evidence in the applicant's separation packet to rebut the presumption of regularity (e.g., the inconsistent separation authority, narrative reason, and separation code). 4. On 12 December 2014, under ADRB Case Number AR20140020112, the applicant's request for reconsideration was denied (i.e., "No Board Action Taken") because the board had previously heard his case on a records review. a. Then, on 3 February 2015, in response to a request from applicant's counsel, the ADRB indicated that it had previously heard the applicant's case under Case Number AR20140020112 on a records review and advised that the ADRB does not hear requests for reconsideration. However, he could submit a new application for a personal appearance hearing before the ADRB. b. The applicant and his counsel requested a personal appearance hearing before the ADRB. The ADRB notified the applicant of the scheduled date, but failed to notify his counsel. When counsel learned of the scheduled personal appearance board and before the scheduled board date, she requested withdrawal of the request for personal appearance hearing without prejudice. 5. To date, the applicant's case has not been reconsidered by the ADRB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017113 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017113 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2