Applicant Name: ????? Application Receipt Date: 2012/05/10 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he would like a change to his narrative reason for discharge. He contends he was unfairly treated by his command and that he only failed one drug test and should not be labeled a drug abuser. He was under a lot of stress when he arrived at his unit and feel he was attacked because of his appearance. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 071214 Discharge Received: Date: 080108 Chapter: 14-12c(2) AR: 635-200 Reason: Misconduct (Drug Abuse) RE: SPD: JKK Unit/Location: HHB, 4/5th AD, Fort Hood, TX. Time Lost: None Article 15s (Charges/Dates/Punishment): 070921, failure to go at the time prescribed to his appointed place of duty x 4 (070717, 070718, 070912, and 070912), disresspectful in language towards a noncommissioned officer (070808), and disobeying a lawful order from a noncommissioned officer (070912), reduction to E2; forfeiture of $729.00 pay per month for two months (suspended); extra duty for 45 days; and restriction for 45 days, (FG). 071015, wrongful use of marijuana between (070820 and 070921), reduction to E1; forfeiture of $500.00 pay per month for two months (suspended); extra duty for 45 days; and restriction for 45 days; (FG). Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 18 Current ENL Date: 050609 Current ENL Term: 04 Years ????? Current ENL Service: 02 Yrs, 06 Mos, 03 Days ????? Total Service: 02 Yrs, 06 Mos, 03 Days ????? Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 25F10/Network Switching System Operator/Maintainer GT: 100 EDU: HS Grad Overseas: Korea Combat: None Decorations/Awards: NDSM, KDSR, ASR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 14 December 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense for use of illegal drugs, receiving a Field Grade Article 15 for violation of Article 112a, wrongful use of marijuana; Field Grade Article 15 for four violation of Article 86 (AWOL) and two violations of Article 91 (disrespecting a noncommissioned officer and disobeying a lawful order), with a general, under honorable conditions discharge. He was advised of his rights. The applicant's record contains a undated and unsigned election of rights memorandum. The analyst presumed government regularity in the discharge process. 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 of the separation with a general, under honorable conditions discharge. On 19 December 2007, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. b. Legal Basis for Separation: 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. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, and the issues and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The analyst determined 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. By the misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. 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. The narrative reason for separation is governed by specific directives. The applicant was discharged under the provisions of Chapter 14, Paragraph 14-12c(2), AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends he was unfairly treated by his command and that he only failed one drug test and should not be labeled a drug abuser. 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 issue. There is no evidence in the record, nor has the applicant produced any evidence or documentation to support the contention that he was unfairly discharged. In fact, the applicant’s two Articles 15 under the Uniform Code of Military Justice justified the discharge. The applicant’s statement alone does not overcome the government’s presumption of regularity in this case. Furthermore, 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 service below that meriting an honorable discharge. He also contends he was under a lot of stress when he arrived at his unit and feel he was attacked because of his appearance. While the applicant may believe stress in his unit was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. In view of the foregoing, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 3 April 2013 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: None Exhibits Submitted: DD Form 293 and DD Form 214 for the period of service under review. VIII. Board Discussion, Determination, and Recommendation 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 to be proper and equitable and voted to deny relief. IX. Board Decision Board Vote: Character - Change 0 No change 5 Reason - Change 1 No change 4 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: N/A RE Code: Grade Restoration: No Yes Grade: None XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III Colonel, U.S. Army President, Army Discharge Review Board JOSEPH M. BYERS Lieutenant Colonel, U. S. Army Secretary Recorder 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 UOTH - Under Other Than Honorable Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20120009474 ______________________________________________________________________________ Page 2 of 4 pages