IN THE CASE OF: Mr. BOARD DATE: 13 March 2015 CASE NUMBER: AR20140004770 ___________________________________________________________________________ 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 that follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief. 2. Further, the Board determined that the narrative reason for discharge is now inequitable based on the circumstances surrounding the discharge involving capricious actions by the applicant’s chain of command. Accordingly, the Board voted to change the applicant’s reason for discharge, authority, separation code, and reentry code on the basis of equity. The Board directed the DD Form 214 be reissued with the following changes: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c; b. block 26, separation code changed to JKQ; c. block 27, reentry code changed to 3; and d. block 28, narrative reason for separation changed to Misconduct (Serious Offense). 3. Except for the foregoing modifications, the Board determined the discharge was both proper and equitable. 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 the characterization of his service from general, under honorable conditions to fully honorable. 2. The applicant states, in pertinent part and in effect, described the circumstances and events surrounding an incident that led to his discharge. He served a combat tour in Afghanistan. He is unable to collect unemployment benefits and has been searching for employment. An upgrade would allow him to use his Post 9/11 GI Bill. He plans to attend a nursing school and perhaps continue his military service in the Army National Guard. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 13 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 28 January 2014 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: 18th Engr Co, 3rd Stryker BCT, Join Base Lewis- McChord, WA f. Current Enlistment Date/Term: 3 May 2011, 3 years, 16 weeks g. Current Enlistment Service: 2 years 8 months, 26 days h. Total Service: 2 years 8 months, 26 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 12B10, Combat Engineer m. GT Score: 101 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Afghanistan (111206-121118) q. Decorations/Awards: ARCOM; NDSM; ACM-CS; GWOTSM; ASR; OSR; NATO MDL; CAB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 3 May 2011, for a period of 3 years and 16 weeks. He was 22 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 12B10, Combat Engineer. He served in Afghanistan. He earned an ARCOM. He completed 2 years, 8 months, and 26 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 7 January 2014 (as acknowledged by the applicant), 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 misconduct-abuse of illegal drugs, specifically for possessing spice (131121). 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 8 January 2014, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected to 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. In an undated memorandum, 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 28 January 2014, 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. 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. There is no record of any actions under the UCMJ. However, the applicant was separated as PVT/E-1 and the action that caused his reduction is not contained in the service record. 2. Five negative counseling statements, dated between 9 June 2013 and 15 November 2013, for being absent from duty; failing to be at his appointed place of duty at the prescribed time; and disrespecting an NCO. 3. Mental Status Evaluation Report, dated 9 December 2013, indicates the applicant had a profile for his lower back, a PTSD screening score was 39 but provided no positive or negative indication, and was psychiatrically cleared for any administrative process deemed appropriate by his command. 4. A CID Report, dated 26 November 2013, indicates the applicant was the subject of an investigation for failing to obey an order or regulation. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement; sworn statement, dated 16 November 2013; and Congressional correspondence, dated 30 May 2014 and 4 June 2014. 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, paragraph 14-12c(2), 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 was carefully considered. However, after examining the applicant’s record of service, his military records, and the documents and issues 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 his reduction in grade by a punitive action that is not available and negative counseling statements. 3. 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. 4. The applicant contends that an upgrade of his discharge would allow him to obtain an employment or become eligible for unemployment benefits. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 5. The applicant contends an upgrade would allow him to use his Post 9/11 GI Bill benefits. 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. Further, the Board does not grant relief solely for the purpose of attaining veteran’s benefits. 6. The applicant desires to rejoin the Military Service with the Army National Guard. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 7. The applicant contends the discharge was unjust because the illegal drugs that were found did not belong to him. 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 sufficient evidence to support the contention that he may have been unjustly discriminated. 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 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. 9. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. MINORITY OPINION In a 3-2 vote the Army Discharge Review Board voted to simultaneously change the applicant’s narrative reason for separation from serious misconduct, abuse of illegal drugs to serious misconduct while concurrently not changing the characterization of his service from general under honorable conditions to honorable. I believe the available facts in this case prove the Board arrived at the wrong decision with respect to the characterization and narrative reason for separation. The result is the applicant retains what is fundamentally an inequitable separation from the service. The record shows the applicant was informed of the intent to separate him from the Army after unit leadership searched his privately owned vehicle as part of a health and welfare inspection. The applicant consented to the search as he believed he had no contraband in his vehicle. In the course of searching the vehicle leadership found a substance later identified as “spice.” The record shows several germane facts which bear heavily on this case. First of all, the applicant states it was not his “spice” found in his vehicle. That someone would deny ownership of an illegal item when caught with it is not surprising. What is unusual in this case; however, is that the record strongly indicates the applicant was in fact telling the truth with this assessment based on the sworn statements of other members of the unit who stated: 1. With the applicant’s permission they borrowed his POV. 2. While operating the POV they smoked “spice.” 3. That they left the remains exactly where leadership found it. It is important to highlight the fact that the statements which exonerate the applicant made the authors liable for punishment. This was not a case in which someone immune from the penalties of misconduct made a statement in an effort to assist someone who was facing punishment. Unlike many cases, this one has sufficient evidence to allow a reasonable and prudent person to judge the circumstances, the participants and the veracity of their statements. I find in evaluating the evidence the command acted properly in taking action to separate drug users from the service but erred in this case by separating an innocent Soldier and compounded that error by assigning him an exceptionally pejorative reason for separation. As a matter of equity the error should be corrected and the applicant’s characterization of service upgraded to honorable with a revised narrative reason of Secretarial Authority and RE Code of 1 to allow a return to service should he desire to do so. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 13 March 2015 Location: Washington, DC Did the Applicant Testify? No Counsel: None Board Vote: Character Change: 2 No Change: 3 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: No Change Change Reason to: Misconduct (Serious Offense) Change Authority for Separation: AR 635-200, Chapter 14, Paragraph 14-12c Change RE Code to: 3 Grade Restoration to: NA Other: Separation Program Designator (SPD) code to JKQ 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) AR20140004770 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1