IN THE CASE OF: Mr. BOARD DATE: 11 March 2015 CASE NUMBER: AR20140005161 ___________________________________________________________________________ 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 to be 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, blocks 25, 26, and 28 contain erroneous entries. 3. The Board directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, chapter 14, para 14-12c, b. block 26, separation program designator (SPD) code changed to JKQ, and c. block 28, narrative reason for separation changed to Misconduct (Serious Offense). 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 under other than honorable to honorable and a change to the narrative reason. 2. The applicant states, in pertinent part and in effect, his discharge was unjust and should be corrected because it was based on false and inaccurate information provided by his first sergeant. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 20 March 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 16 January 2003 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Paragraph 14-12c(2), JKK, RE-3 e. Unit of assignment: HHC, 3rd Bn, 66th Armor Regiment, 1st Bde, 4th Infantry Division (Mechanized), Fort Hood, TX f. Current Enlistment Date/Term: 1 March 2000, 6 years g. Current Enlistment Service: 2 years, 9 months, 6 days h. Total Service: 2 years, 9 months, 6 days i. Time Lost: 40 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 74B10, Information Systems Operator-Analyst m. GT Score: 100 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM; ASR r. Administrative Separation Board: Yes 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 1 March 2000, for a period of 6 years. He was 19 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 74B10, Information Systems Operator-Analyst. His record documents no acts of valor or significant achievement. He completed 2 years, 9 months, and 6 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 18 September 2002, 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 for the following reasons: a. For being convicted by a summary court-martial (020909) and receiving a sentence of 30 days confinement, for the following offenses: (1) being AWOL on three separate occasions, in violation of Article 86, UCMJ; (2) disobeying an NCO, in violation of Article 91, UCMJ; (3) using a drug, in violation of Article 112a, UCMJ; and (4) breaking restriction, in violation of Article 134, UCMJ. b. For receiving numerous DA Forms 4856, counseling statements, detailing multiple infractions of the UCMJ, to include but not limited to numerous FTR’s, failing to be in the proper uniform, and failing to abide by corrective training procedures and orders. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 25 September 2002, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than honorable. 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 an under other than honorable conditions discharge. 4. In an undated memorandum, the separation authority disapproved the applicant’s offer to waive his right to appear before the board. 5. The applicant’s notification to appear before an administrative separation board and being advised of his rights is not available. 6. On 19 December 2002, the administrative separation board convened and the applicant appeared with counsel. The board found the applicant committed acts of misconduct which constituted commission of a serious offense and recommended the applicant’s discharge with characterization of service of under other than honorable conditions. 7. On 3 January 2003, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions, under the provisions of paragraph 14-12c, AR 635-200 and to be reduced to the lowest enlisted pay grade. 8. The applicant was discharged from the Army on 16 January 2003, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKK, and an RE code of 3. 9. The applicant’s record of service indicates 40 days of time lost for being AWOL on three separation occasions (020613-020624, 020626-020627, and 020710-020804). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Report of Proceedings by a Board of Officers provides the findings and recommendation of an administrative separation board that convened on 19 December 2002. 2. Report of Result of Trial and Record of Trial indicates on 9 September 2002, the applicant was guilty of offense by a summary court-martial: a. Charge I with three specifications of being AWOL, in violation of Article 86, UCMJ; b. Charge II, for disobeying an NCO, in violation of Article 91, UCMJ; c. Charge III, for drug use, in violation of Article 112a, UCMJ; and d. Charge IV, for breaking restriction, in violation of Article 134, UCMJ. The applicant’s sentence consisting of confinement for 30 days was approved. 3. Charge Sheet listing the charges described at paragraph 2 that were preferred on 13 August 2002, and referred for trial by a summary court-martial on 4 September 2002. 4. There is a positive urinalysis report contained in the record: IU, Inspection Unit, 25 June 2002, marijuana. 5. Twenty-six negative counseling statements, dated between 27 August 2001 and 5 August 2002, for disrespecting an NCO; communicating a threat by gestures; failing to be at his appointed place of duty at the prescribed time; being out of uniform; wrongfully using a controlled substance; being referred to ADAPC; being recommended for a FG Article 15; poor performance; attitude being unsatisfactory; conditions of restriction; failing to comply with a corrective training; and disobeying a lawful order; being in an unauthorized location during duty hours; missing movement; compromising his integrity; being absent from duty; and being AWOL. 6. The unit commander’s forwarding memorandum reflects a summarized Article 15; however, it is not available in the applicant’s record. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided none. 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 3. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and to change the narrative reason for his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or to change the narrative reason for his discharge that was approved by the separation authority. 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. 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 and the serious incidents of misconduct, the applicant diminished the quality of his service below that meriting a general or a fully honorable discharge. The applicant’s record of service was marred by a summary court-martial for multiple violations of the Uniform Code of Military Justice and numerous 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 the discharge was unjust because it was based on false and inaccurate information. 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 he may have been unjustly discriminated. In fact, the applicant’s summary court-martial conviction and numerous negative counseling statements justify serious incidents of misconduct. 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. 5. Regarding the applicant’s contention that his discharge should be corrected, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 6. 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. 7. 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 and considering the Discussion and Recommendation which follows, the Board determined the discharge to be 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, blocks 25, 26, and 28 contain erroneous entries. 3. The Board directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, chapter 14, para 14-12c, b. block 26, separation program designator (SPD) code changed to JKQ, and c. block 28, narrative reason for separation changed to Misconduct (Serious Offense). SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 11 March 2015 Location: Washington, DC Did the Applicant Testify? No Counsel/Representative: None 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: Misconduct (Serious Offense) Change Authority for Separation: AR 635-200, Chapter 14, Paragraph 14-12c Change RE Code to: NA 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) AR20140005161 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1