IN THE CASE OF: Mr. BOARD DATE: 21 June 2013 CASE NUMBER: AR20130002298 ___________________________________________________________________________ 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 and Recommendation 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. The applicant requests to upgrade his characterization of service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge. 2. The applicant states, in effect, that his discharge is inequitable and improper. Because of his physical disabilities, he endured discrimination, harassment, racism, and lack of medical care for physical injuries received while on active duty. Additional issues are: using unauthorized lab results per Army regulation, wrongful application of AR 635-200 and 635-40, and character assassination while under oath. He claims he exhausted all resources by filing an Article 138, IG complaint, medical IG, and provided documents to his Congressman and the NAACP. He received no Article 15 punishment, but received positive counseling statements. He also requested a court-martial, but it was not granted. An investigation was not conducted, no government witness at the administrative separation board, neither the SJA nor did the GCMCA address the issue of AR 635-200, paragraph 1-33. His defense counsel pointed out the separation board’s president impartiality by knowing his commanding officer and made inquiring calls prior to the hearing. His commanding officer also lied under oath to assassinate his character and performing his duty. The investigation did not address his accomplishments. (Note that the applicant made additional unclear assertions.) DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 28 January 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 1 August 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: HHC, STB, 1st Heavy Brigade Combat Team, Fort Riley, KS f. Current Enlistment Date/Term: 3 February 2009, 3 years g. Current Enlistment Service: 3 years, 5 months, 29 days (service extended for the convenience of the Government) h. Total Service: 14 years, 9 months, 27 days i. Time Lost: None j. Previous Discharges: USAR (781004-790305) / HD USN (790801-850131) / HD USNR (850201-850731) / NA USN (860407-870723) / HD ARNG (051031-061030) / HD ARNG (061117-090202) / HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 91D10, Power-Generator Equipment m. GT Score: 106 n. Education: One year college o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM; GWOTSM; AFRM-M; ASR; USN SSDR r. Administrative Separation Board: Yes s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 3 February 2009 for a period of 4 years—record further shows he was extended for the convenience of the Government. He was 37 years old at the time of entry and had one year college. His record for current service under review documents no overseas assignment or acts of valor or significant achievement. He completed 3 years, 5 months, and 29 days of active duty service, and approximately 11 years and 3 days of prior active and inactive service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 18 July 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of commission of a serious offense for wrongfully using cocaine. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 25 July 2011, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon being retained on active duty. The applicant did not submit a statement on 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. On 21 March 2012, the separation authority disapproved the conditional waiver and referred the applicant’s case before an administrative separation board. 5. On 29 March 2012, the applicant was notified to appear before an administrative separation board and advised of his rights. 6. On 10 May 2012, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions. 7. On 9 July 2012, the separation authority determined that the medical condition was not a direct or substantial contributing cause of the misconduct and determined that there were no other circumstances that warranted continued PEB processing; approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 8. The applicant was discharged from the Army on 1 August 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), a Separation Program Designator code (SPD) of JKK and an RE code of 4. 9. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are two positive urinalysis reports contained in the record: IR, (Inspection Random) dated 29 May 2012, cocaine IR, (Inspection Random) dated4 January 2011, cocaine 2. Five negative counseling statements dated between 1 December 2009, and 2 July 2012, for not being recommended for promotion, positive urinalysis results, disrespecting an NCO, and the status of his medical board and separation proceedings. 3. Memorandum for Record, dated 5 July 2013, subject: counseling packet regarding the applicant, which explains the absence of any counseling record prior to January 2012. 4. DA Form 1574 (Report of Proceedings by Board of Officers) with summarized proceedings reported the following findings and recommendations of the board that convened and adjourned on 10 May 2012: The allegation of wrongful use of cocaine which was supported by a preponderance of the evidence. The board recommended the separation of the applicant under the provisions of AR 14-12c(2), commission of a serious offense-abuse of illegal drugs, and that his service be characterized as General, Under Honorable Conditions. 5. DA Form 3947 (Medical Evaluation Board Proceedings), dated 22 February 2012, reports the board’s findings regarding the applicant’s medical conditions that includes the response to the applicant’s appeal, dated 17 February 2012, and the applicant’s appeal, dated 15 February 2012. 6. An e-mail correspondence, dated 12 April 2012, exchanged between the president of the administrative separation board, the board’s legal advisor, and a doctor, regarding the board president’s inquiry regarding any chance for a false positive result since the applicant takes Percocet and other drugs for chronic pain management. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 214 for service under current review; a self-authored statement; enlistment documents for 31 October 2005 and 17 November 2006 enlistments; DD Forms 214, dated 23 July 1987, 31 January 1985, 5 March 1979; certificate of recognition for Cold War service; 8 character reference letters, dated 8, 9, and 10 March 2012; 7 counseling statements, dated between 3 November 2009 and 4 March 2010; DA Form 2627, completed through election of rights on 21 February 2012; document subtitled congressional complaint; congressional correspondence, dated 2 April 2012; Request for Redress under Article 138, dated 1 July 2011; sworn statement rendered by the applicant, dated 14 May 2012; counseling statement, dated 30 August 2011 with October 2011 SDO/SDNCO Roster; physical profile; and applicant’s congressional letter, dated 7 April 2012, indicating an urgent update with its enclosures. POST-SERVICE ACTIVITY: The applicant provided none. 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 635-5-1 (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, misconduct (drug abuse). 5. 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 AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and a change to the reason for his discharge was carefully considered. However, after examining the applicant’s service record, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for the 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 two documented incidents of wrongful use of cocaine and several negative counseling statements. 3. The applicant contends his discharge was inequitable and improper, because he endured discrimination, harassment, and racism due to his physical disabilities, and lack of medical care for injuries he received while on active duty. Although he contends that he exhausted all resources to obtain assistance or relief and presented several documents indicating that he sought such assistance, there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge or a change to the narrative reason for his discharge. 4. The applicant contends he received no Article 15 punishments, but received positive counseling statements, and that he had requested trial by court-martial, but it was not granted. The record confirms several monthly counseling statements regarding the applicant’s performance, job description, positive urinalysis test results and the recommendation not to promote the applicant. The monthly counseling sessions regarding the applicant’s were carefully considered. However, they were determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge or a change to the narrative reason for his discharge as shown by the two incidents of misconduct for wrongfully using cocaine. 5. 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 character of the applicant’s discharge is commensurate with his overall service record. 6. The applicant’s contentions regarding several errors during the proceedings of the administrative separation board were carefully considered. However, the record reflects that a legal review of the administrative separation board proceedings was done on 8 June 2012, and was found to be legally sufficient. Moreover, the evidence of the record shows that the rights of the applicant were not prejudiced and there was no error on file in this case. Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was prejudicial in nature. The applicant’s record documents two incidents of misconduct and no significant favorable entries. There is also the 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 the issues. In fact, the applicant’s two separate incidents of testing positive for cocaine and numerous negative counseling statements justify the misconduct. Moreover, the applicant did not provide sufficient corroborating and supporting documentation or further evidence demonstrating that either the command’s action was erroneous or that his service mitigated the misconduct. The applicant’s statements alone do not overcome the government’s presumption of regularity. 7. The applicant contends that neither the SJA nor did the GCMCA address the issue of AR 635-200, paragraph 1-33, disposition of his case through medical channels. However, Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped and the board report is filed in the member’s medical record. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. In addition, AR 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The record reflects that the separation authority, upon reviewing the applicant’s separation packet, the documents pertaining to the Medical Evaluation Board, and any submission from the Soldier, directed the administrative separation of the applicant, and further determined that the applicant’s medical condition was not a direct or substantial contributing cause of the misconduct and that there are not other circumstances that warrant continued PEB processing. 8. The third party statements provided with the application that provided character reference for the medical board were carefully considered toward a determination regarding the applicant’s request for an upgrade and a change to the narrative reason for his discharge. It is determined that none of these statements provide any evidence sufficiently compelling to overcome the presumption of regularity, or the reason for the applicant’s discharge and characterization of service granted. 9. Regarding the applicant request to change the reason for the discharge, AR 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), for drug offenses. The regulation further stipulates that no deviation is authorized. 10. 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 character of the applicant’s discharge is commensurate with his overall service record. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case. 11. Therefore, the reason for discharge and the characterization being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 21 June 2013 Location: Washington, DC Did the Applicant Testify? NA Counsel: None 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) AR20130002298 Page 8 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1