IN THE CASE OF: Mr. BOARD DATE: 14 May 2014 CASE NUMBER: AR20130015524 ___________________________________________________________________________ Board Determination and Directed Action 1. After carefully examining the applicant’s record of service during the period of enlistment under review, notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the discharge was improper. The evidence of record supports the applicant was discharged on the expiration of his term of service date (ETS). Army Regulation 635-200, states that only an honorable characterization of service may be awarded to Soldiers upon completion of their period of enlistment. Accordingly, the Board voted to grant full relief by changing the characterization of service to honorable. 2. Further, the Board found the applicant served his entire enlistment and the chain of command had the option to allow him to be separated by reason of ETS. In view of the foregoing, the Board voted to change block 25 separation authority to AR 635-200, Chapter 4, block 26 separation code (SPD) to JBK and an RE Code of 3, and block 28 narrative reason for separation to completion of required active service. 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. 2. The applicant states, in effect, he got in trouble at the end of his contract and the chain of command felt the need to chapter him with a general discharge. The discharge process pushed him passed his expiration of term of service (ETS), and he was not given the opportunity to attend ACAP. DISCHARGE UNDER REVIEW INFORMATION a. Application Receipt Date: 20 August 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 18 November 2011 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, Chapter 14, paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: Forward Support Company, 2-12th Cavalry Regiment, 4th Brigade Combat Team, Fort Hood, TX f. Current Enlistment Date/Term: 1 July 2008, 3 years and 20 weeks/with a moral waiver (080607) g. Current Enlistment Service: 3 years, 4 months, 18 days h. Total Service: 3 years, 4 months, 18 days i. Lost time: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92G10, Food Service Operations m. GT Score: 112 n. Education: HS graduate o. Overseas Service: Southwest Asia/Korea p. Combat Service: Iraq (100914-110913) q. Decorations/Awards: AAM, NDSM, ICM-W/CS, GWOTSM, KDSM, ASR, OSR-2, 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 1 July 2008, for a period of 3 years and 20 weeks. He was 25 years old at the time of entry and had a high school diploma. He was trained in and awarded military occupational specialty (MOS) 92G10, Food Service Operations. His record also shows that he served a combat tour, earned an AAM; and he achieved the rank of SPC/E-4. He was serving at Fort Hood, TX when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 16 November 2011, 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. Specifically for the following offenses: a. violating a lawful general order, General Order Number 1A by possessing and using a synthetic cannabinoid known as spice (110705-110805). b. admitting to wrongfully possessing and using spice (110805). c. testing positive for the chemical compounds of two synthetic cannabinoids (110829). 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 16 November 2011, the applicant was afforded the opportunity to consult with legal counsel and waived the opportunity to do so, he was advised of the impact of the discharge action, waived consideration of my case by an administrative separation board (although 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 18 November 2011, 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 was discharged from the Army on 18 November 2011, 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), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Article 15, dated 7 November 2011 for wrongfully using spice (110728); the punishment consisted of a reduction to E-1, forfeiture of $500 pay x 2 months, extra duty for 45 days, restriction for 30 days, and an oral reprimand, (FG). 2. An Article 15, dated 5 October 2010 for wrongfully using marijuana; the punishment consisted of a reduction to E-1, forfeiture of $723 pay x 2 months, and extra duty for 45 days, (FG). This Article 15 is not contained in the available, see bar to reenlistment. 3. He received two negative counseling statements dated August 2011 and 7 November 2011 for being under investigation by CID for drug use and recommended for administrative separation under Chapter 14-12c. 4. The record contains a CID Report of Investigation; dated 9 August 2011 indicating the applicant was under investigation for wrongful use of spice. 5. Several DA Forms 2823 (Sworn Statement), dated between 3 August and 5 August 2011, giving accounts of the possession and the use of spice. 6. DA Form 8003 (Army Substance Abuse Program, ASAP Enrollment), undated indicated the applicant was command referred to ASAP. 7. An approved Bar to Reenlist, dated 13 October 2010. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided two online applications (nine pages), and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any information with his 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. ANALYST’S DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's 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 an Article 15, two negative counseling statements, and several sworn 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 contends he got in trouble at the end of his contract and the chain of command felt the need to chapter him with a general discharge. 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. 5. The applicant further contends the discharge process pushed him passed his expiration of term of service (ETS), and he was not given the opportunity to attend ACAP. The applicant’s ETS was 20 November 2011; the separation authority approved the applicant’s discharge on 18 November 2011 two days prior to his ETS. 6. Further, one of the services provided by ACAP is the preseparation briefing. Soldiers are required to complete a preseparation counseling checklist, DD Form 2648 or 2648-1. A Soldier will not be able to clear the installation until he participates in such a briefing and complete the checklist. The record of evidence shows the applicant completed a preseparation counseling checklist on 20 October 2011. 7. Also, the applicant bears the burden of presenting credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was not given the opportunity to attend ACAP. 8. The records show the proper discharge and separation authority procedures were followed in this case. 9. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. Board Determination and Directed Action 1. After carefully examining the applicant’s record of service during the period of enlistment under review, notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the discharge was improper. The evidence of record supports the applicant was discharged on the expiration of his term of service date (ETS). Army Regulation 635-200, states that only an honorable characterization of service may be awarded a Soldiers upon completion of their period of enlistment. Accordingly, the Board voted to grant full relief by changing the characterization of service to honorable. 2. Further, the Board found the applicant served his entire enlistment and the chain of command had the option to allow him to be separated by reason of ETS. In view of the foregoing, the Board voted to change block 25 separation authority to AR 635-200, Chapter 4, block 26 separation code (SPD) to JBK and an RE Code of 3, and block 28 narrative reason for separation to completion of required active service. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 14 May 2014 Location: Washington, DC Did the Applicant Testify: NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 3 No Change: 2 Reason Change: 3 No Change: 2 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Completion of Required Active Service Change Authority for Separation: AR 635-200, Chapter 4 Change RE Code to: NA Grade Restoration to: NA Other: Separation Program Designator (SPD) code to LBK 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) AR20130015524 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1