IN THE CASE OF: BOARD DATE: 22 September 2014 CASE NUMBER: AR20140011003 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s quality of his service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. 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 through legal counsel an upgrade of his discharge from general, under honorable conditions to honorable, a change to his reentry eligibility (RE) code, and a change to his narrative reason for discharge. 2. The applicant states, in effect, through legal counsel his discharge should be upgraded as a result of his performance as a Soldier on active duty, his denial of illegal drugs use, and as a result of his conduct subsequent to his discharge. The applicant contends he was asked to take on the job of RTO during deployment and he performed his duties with skill and bravery in a combat environment. He has maintained his innocence from the very beginning; he didn't admit to using cocaine because he did not knowingly use cocaine. He has struggled with PTSD but is trying to make a better life for himself. He has not been in any trouble and has spent most of his time dealing with issues related to his PTSD. He attempted school, but found he was not mentally ready for that challenge. He spends two to three days a week dealing with his medical issues. He contends his current characterization of service hurts him, it took away his GI Bill benefits, hurts his chances at receiving better employment opportunities, and he was required to pay back his enlistment bonus. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 20 June 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 14 June 2012 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, Chapter 14 Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: C Co, 1st Bn, 26st IN, Fort Knox, KY f. Current Enlistment Date/Term: 4 November 2009, 5 years and 17 weeks g. Current Enlistment Service: 2 years, 7 months, 11 days h. Total Service: 2 years, 7 months, 11 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Afghanistan (110105-111221) q. Decorations/Awards: ARCOM, ACM-w/2CS, MUC, GWOTSM, NDSM ASR, OSR, NATOMDL, CIB 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 4 November 2009, for a period of 5 years and 17 weeks. He was 22 years old at the time of entry and a high school graduate. His record indicates he served in Afghanistan; earned several awards to include the ARCOM, and the CIB, and he achieved the rank of SPC/E-4. He was serving at Fort Knox, KY when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, 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. 2. The DD Form 214 indicates that on 14 June 2012, 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. 3. The applicant’s available service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: The record did not contain any other relevant information. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant through legal counsel provided the following documents in support of his case; a. DD Form 293, dated 19 June 2014, b. Signed Power of Attorney, c. DD Form 214 for the period of service under review, d. Personal Statement, e. Letter from Department of Veterans Affairs, dated 7 May 2013, f. Orders 280-112, award of CIB, dated 7 October 2011, g. Counseling statements, dated 17 June 2011 and 1 July 2011, h. Urinalysis test dated 6 January 2012, which was coded; IU (Inspection Unit), with a test result of positive for cocaine, i. Sworn statement to CID, dated 1 February 2012, j. Field Grade Article 15 which was imposed on 16 March 2012, for the wrongful use of cocaine between (111229 and 120106). The punishment consisted of a reduction to the grade of E-1, forfeiture of $745.00 pay per month for two months, and extra duty and restriction for 45 days, k. Letters of support (10), dated 1 August 2012, 21 August 2012, 1 March 2013, 5 March 2013, 11 March 2013 (2), and undated (4), and l. Payment history to DFAS. POST-SERVICE ACTIVITY: None were 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 through legal counsel for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s available record of service, the issues and documents 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 specific facts and circumstances concerning the events which led to his discharge from the Army. However, 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 also 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 the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. The applicant contends through legal counsel that his discharge should be upgraded based on his performance as a Soldier on active duty, his denial of illegal drug use and his conduct subsequent to his discharge. However, it is unknown if these contentions have merit because the facts and circumstances leading to the discharge are not contained in the service record. The burden of proof remains with the former Soldier to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. 5. Furthermore, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. It appears the applicant’s generally good record of service was the basis for his receiving a general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge. However, his misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge. 6. Further, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. 7. The applicant also requested through legal counsel a change in his narrative reason for discharge and a change to his RE code. 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. 8. 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. 9. Additionally, the applicant contends through legal counsel he has struggled with PTSD but is trying to make a better life for himself. He has not been in any trouble and has spent most of his time dealing with issues related to his PTSD. The independent documents submitted by the applicant referencing 70 percent PTSD were noted. However, the available service record contains no evidence of a PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. There are many Soldiers with the same condition that completed their service successfully. 10. Therefore, based on the available evidence and the presumption of government 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. BOARD DETERMINATION AND DIRECTED ACTION: After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s quality of his service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. SENIOR REVIEWING AUTHORITY (SRA) DIRECTED ACTION: Upon review, the SRA adopted the Board President’s recommendation to overturn the Board’s decision. The applicant failed to provide sufficient documentation to support his contentions, and SRA found his testimony not to be creditable to overcome the presumption of government regularity. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 22 September 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: Yes Board Vote: Character Change: 3 No Change: 2 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: No Change Change RE Code to: No Change 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) AR20140011003 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1