IN THE CASE OF: Mr. BOARD DATE: 22 April 2015 CASE NUMBER: AR20140008258 ___________________________________________________________________________ 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 through legal counsel requests an upgrade of his discharge characterization from general under honorable conditions to honorable, a change to his narrative reason for discharge, and a change to his reentry eligibility (RE) code. 2. The applicant states, in effect, through his legal counsel that he would like his discharge upgraded so he can reenlist in the military and serve his country again. He contends because of his past strong work performance and work as a CI for Army CID, he was told by his then command that he would not be separated. He contends his use of oxycodone/oxymorphone was the result of going through personal family issues and was a one-time event. He believes despite his good work for the unit and his acceptance of responsibility, zero consideration was given to him for his corrective action by his new commander. He contends, he worked hard to complete counseling, the ASAP program, and even helped law enforcement; therefore, his discharge should be upgraded. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 May 2014 b. Discharge received: General, Under Honorable Conditions c. Date of Discharge: 18 October 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: HHC, 3rd Bn, 25th AVN, Schofield Barracks, HI f. Current Enlistment Date/Term: 15 December 2009, 2 years g. Current Enlistment Service: 1 year, 11 months, 4 days h. Total Service: 3 years, 4 months, 28 days i. Time Lost: None j. Previous Discharges: RA-080521-091214/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 35F10, Intelligence Analyst m. GT Score: 115 n. Education: HS Graduate o. Overseas Service: Hawaii p. Combat Service: Iraq 20090908-20100801 q. Decorations/Awards: ARCOM, ICM-w/CS, MUC, NDSM, GWOTSM, ASR, OSR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes, submitted by the applicant u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 21 May 2008, for a period of 3 years and 29 weeks. On 15 December 2009, he reenlisted for a period of 2 years. He was 19 years old at the time of reenlistment and a high school graduate. His record indicates he earned several awards to include the ARCOM and achieved the rank of SPC/E-4. He was serving at Schofield Barracks, HI when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army. However, documents submitted by the applicant indicate on 21 August 2011, 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 using Oxycodone and Oxymorphone, resulting in a FG Article 15 (110803). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. 4. On 28 September 2011, DA, USAG-HI, Schofield Barracks, HI, Orders Number 271-0002, discharged the applicant from the Army effective 18 October 2011. 5. The DD Form 214 indicates that on 18 October 2011, the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), with a characterization of service of general, under honorable conditions. The DD Form 214 also shows a Separation Program Designator (SPD) code of JKK and a reentry (RE) code of 4. 6. The applicant’s available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: Discharge Orders Number 271-0002, dated 28 September 2011. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided a DD Form 293, a legal brief from counsel (5 pages) to include letters of support, a developmental counseling form, ASAP Certificate, a copy of his enlistment/reenlistment documents, enlisted record brief, and documents from his separation packet. 2. DOD drug testing results document, shows the applicant tested positive for Oxycodone and Oxymorphone during an IU (Inspection Random) testing 3 May 2011. 3. Article 15, imposed on 3 August 2011, for wrongfully using Oxycodone between (110512 and 110516) and Oxymorphone between (110513 and 110516). The punishment consisted of reduction to the grade of E-1, forfeiture of $733.00 pay per month for two months (suspended), and extra duty and restriction for 45 days (FG). 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 "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, a change of his narrative reason, and a change to his RE code was carefully considered. However, after examining the applicant’s available 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 applicant’s record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army. However, documents submitted by the applicant indicate on 21 August 2011, 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 using Oxycodone and Oxymorphone, resulting in a FG Article 15 (110803). The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. 3. The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c(2) by reason of misconduct (drug abuse), with a characterization of service of general, under honorable conditions. Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. The applicant contends about his past strong work performance, work as a CI for Army CID and that he was told by his then command that he would not be separated was carefully considered. However, there is insufficient evidence available in the official record to make a determination upon whether his contentions have merit because the complete facts and circumstances leading to the discharge are unknown. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a contention he was improperly discharged. The applicant’s statements alone does not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 5. The applicant contends his discharge was based on an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization. It appears the applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 6. The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to reenlist in the military and serve his country again. 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 drug offenses. The regulation further stipulates that no deviation is authorized. 7. Further, 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. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 8. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the complete discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record. 9. Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 22 April 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: Yes [redacted] 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: No Change Characterization to: No Change Change Reason to: No Change Change Authority for Separation: NA Change RE Code to: NA 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) AR20140008258 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1