IN THE CASE OF: BOARD DATE: 28 August 2013 CASE NUMBER: AR20130005452 ___________________________________________________________________________ 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 an upgrade of his discharge from general, under honorable conditions to honorable and a change to the narrative reason for separation. 2. He states, in effect, his chain of command violated AR 27-10 and AR 635-200; he received an illegal Field Grade Article on 15 June 2012, and the battalion commander at the time lacked jurisdiction to implement punishment. Someone in his unit had him sign an election of rights document without the advice of counsel which indicated he "waived" both consideration of his case by administrative separation board and personal appearance before such a board. He desires to receive his VA benefits to attend an institution of higher learning to pursue a degree in business. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 18 March 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 22 December 2012 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, Chapter 14 paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: E Co, 2-2nd Assault Battalion, K-16 Airbase, APO AP 96202 f. Current Enlistment Date/Term: 26 August 2009, 4 years and 25 weeks g. Current Enlistment Service: 3 years, 7 months, 22 days h. Total Service: 3 years, 7 months, 22 days i. Lost time: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92A10, Automated Logistical Specialist m. GT Score: 99 n. Education: HS Graduate o. Overseas Service: Korea p. Combat Service: None q. Decorations/Awards: NDSM, GWOTSM, KDSM, ASR, OSR r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's record shows he enlisted in the Regular Army on 26 August 2009, for a period of 4 years and 25 weeks. He was 19 years old at the time of entry and a HS Graduate. He was trained in and awarded military occupational specialty (MOS) 92A10, Automated Logistical Specialist. His record does not contain any evidence of acts of valor or meritorious achievements. He was serving in Korea when his discharge was initiated and he achieved the rank of SPC/E-4. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 20 September 2012, 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 misconduct-abuse of illegal drugs for wrongfully possessing spice. 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 26 September 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board (although the applicant was not entitled to a board) and did not submit a statement on his 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 15 October 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant’s record of service does not contain any documented evidence of unauthorized absences or lost time. 6. The applicant was discharged from the Army on 22 December 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. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. The applicant received four negative counseling statements dated 16 January 2011, 10 January 2012, 7 May 2012 and 30 July 2012 for a barracks room change, being arrested for drug smuggling, notification of Field Grade Article 15 proceedings, and Chapter 14 separation proceedings. 2. The record contains a CID Report of Investigation dated 7 March 2012, which indicated the applicant was under investigation for narcotics possession. 3. The record also contains a Record of Supplementary Action under Article 15, UCMJ dated 25 September 2012, indicated the punishment of reduction to E-1, imposed on 11 June 2012 was set aside. 4. The record shows the applicant received an Article 15 on 11 June 2012; however, this document is not contained in the available record. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application, Memorandum, Letter of Consideration, four DA Forms 4856 (Developmental Counseling Form), DA Form 4187 (Personnel Action), Memorandum, ROK (Republic of Korea), Seoul Central District Prosecutor’s Office document, four pages. POST-SERVICE ACTIVITY: The applicant did not provide any with the 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. 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 narrative reason for separation was carefully considered. However, after examining his military record, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation. 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 possessing/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 four negative counseling statements. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 4. The applicant requested a change in the narrative reason for separation. However, 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), for misconduct (drug abuse). The regulation further stipulates that no deviation is authorized. 5. The applicant contends his chain of command violated AR 27-10 and AR 635-200; he received an illegal Field Grade Article on 15 June 2012, and the battalion commander at the time lacked jurisdiction to implement punishment. The evidence of record (DA Form 4187) shows the applicant’s was erroneously reduced in rank on 11 June 2012 and his rank was to be restored the same day. 6. Further, record of evidence (Record of Supplementary Action under Article 15, UCMJ) dated 25 September 2012, also shows the punishment of reduction to E-1, imposed on 11 June 2012 was set aside. 7. The applicant further contends someone in his unit had him sign an election of rights document without the advice of counsel which indicated he waived both consideration of his case by administrative separation board and personal appearance before such a board. The election of rights contained in the record appears to have been authenticated by the applicant’s signature which indicated he consulted with legal counsel. His rights were not waived as he believes; he requested consideration of his case by administrative separation board and to appear before a board. In accordance with (IAW) AR 635-200, the applicant had less than six years of total active and reserve service at the time of initiation of separation action and was not being considered for an under other than honorable conditions discharge, therefore he was not entitled to an administrative separation board. 8. The applicant desires to receive his VA benefits to attend an institution of higher learning to pursue a degree in business. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 9. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 28 August 2013 Location: Washington, DC Did the Applicant Testify: No Counsel: 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 RE Code to: No Change Grade Restoration to: NA Change Authority for Separation: No Change 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) AR20130005452 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1