IN THE CASE OF: Mr. BOARD DATE: 19 November 2014 CASE NUMBER: AR20140000327 ___________________________________________________________________________ Board Determination and Directed Action 1. 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. 2. However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27 contains the erroneous reentry eligibility (RE) code of 4. 3. In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations. 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 his narrative reason for discharge. 2. The applicant states, in effect, that he was unjustly discharged. He contends he was discharged as the result of a positive drug test; however, base on the recommendation of his lawyer he requested a hair follicle test which came back negative. He believes someone tampered with his urine samples. He believes that after waiting three months for a court-martial his battalion commander dropped the Article 15 charges against him so he would not have a chance to prove his innocence in a court-martial; which resulted in him being discharged with a general, under honorable condition discharge. He contends although he was a holdover Soldier after AIT he continued to be an outstanding Soldier and supported members of his command. He contends he completed all training which was required for graduation and was not given credit for completing his AIT. The applicant also contends he lost all his money he paid into the GI Bill program because of his discharge. Now he would love nothing more than to be able to reenter the Army. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 30 December 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 14 August 2013 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: A Co, 2nd Bn, 34th AR, Fort Riley, KS f. Current Enlistment Date/Term: 31 January 2012, 3 years and 25 weeks g. Current Enlistment Service: 10 months, 18 days h. Total Service: 10 months, 18 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: None m. GT Score: 115 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 31 January 2012, for a period of 3 years and 25 weeks. He was 24 years old at the time and a high school graduate. He was attending training at Fort Jackson, SC when his discharge was initiated. The record does not contain any evidence of acts of valor or meritorious achievements. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 5 December 2012, 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 (serious offense) for wrongfully using amphetamine, an illegal substance on or about (120712). 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 7 December 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and 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 13 December 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 was discharged from the Army on 18 December 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 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. Memorandum dated 29 June 2012, which indicates the applicant tested and was confirmed positive for drug use by the Forensic Toxicology Drug Testing Lab (FTDTL). The urinalysis test date was 11 June 2012 with a positive result for DAMP-2569. 2. Memorandum dated 2 August 2012, which indicates the applicant received advice from Trial Defense Service concerning an Article 15 his command had offered him and that he had chosen not to speak with an attorney. 3. There is no negative counseling or actions under the Uniform Code of Military Justice in the record. 4. Report of Mental Status Evaluation dated 4 December 2012, which indicates the applicant was diagnosed with polysubstance abuse (by history). It was also noted the applicant had been screened for substance use disorders and the applicant reported marijuana use at age 17, used various drugs, after the death of his mother, such as cocaine, meth, and ecstasy age 21, alcohol use, beginning at age 21, considered himself a social drinker, last time used any type of substance (cocaine) was approximately 8 months prior to BCT. The applicant denies cravings or withdrawal symptoms, while in his military training environment. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application, dated 30 December 2013, a self authored letter (2), a Article 15 document, dated 29 November 2012, indicating the applicant wrongfully used amphetamine on or about (120712), the document makes reference to no punishment, laboratory report dated 6 August 2012, indicating a negative report for drug use, and a letter from the VOICE. POST-SERVICE ACTIVITY: None was provided 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense). 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and a change to his narrative reason for discharge was carefully considered. However, after examining the applicant’s record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms 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. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by his wrongful use of drugs. 3. 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 wrongfully using illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. 4. 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. 5. The applicant also requested his narrative reason for discharge be changed. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense). The regulation further stipulates that no deviation is authorized. 6. The applicant contends he was unjustly discharged because he was discharged as the result of a positive drug test although he had the results of a hair follicle test that showed a negative result and that he believes someone tampered with his sample. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that at the time of his drug testing by the military he was not using drugs or that it may have been tampered. As shown in the mental status evaluation the applicant had used drugs on several other occasions prior to entering the military. 7. Furthermore the applicant's DD Form 1966/3 shows the applicant responded with an "N" when asked if he had ever used marijuana in Section VI. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 8. The applicant also contends he lost the money he paid into the GI Bill program. 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. 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. 10. Additionally; notwithstanding the propriety of the discharge, the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense). AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3. 11. In view of the foregoing and notwithstanding the propriety of the discharge, the analyst recommend the Board change block 27, reentry code to 3, as approved by the separation authority. 12. Except for the foregoing modifications, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 19 November 2014 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: Yes Change Characterization to: No Change Change Reason to: No Change Change Authority for Separation: NA Change RE Code to: 3 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) AR20140000327 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1