IN THE CASE OF: BOARD DATE: 9 February 2015 CASE NUMBER: AR20140015655 ___________________________________________________________________________ Board Determination and Directed Action 1. After carefully examining the applicant’s record of service during the period of enlistment under review, hearing her testimony, and notwithstanding the Discussion and Recommendation that follows, the Board determined the discharge is now inequitable. The Board found that the applicant’s testimony mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. 2. The Board directed the following administrative corrections, and reissue of the applicant’s DD Form 214: a. block 25, separation authority changed to AR 635-200, paragraph 14-12a, b. block 26, separation code changed to JKN, and c. block 28, narrative reason for separation changed to Misconduct (Minor Infractions). 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 her discharge characterization from general, under honorable conditions to honorable. 2. The applicant states, in effect, that she was wrongfully accused guilty for using illegal substance. No investigation was conducted on the matter, 15-6, Police, CID, nothing. Nor was there any evidence from searches of her barracks, vehicle, person, or tests. A bias statement was used to chapter her out. However, she submitted a signed letter from the same individual who stated he was lying on the statement. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 August 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 11 December 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: HHC, USAG, Fort Irwin, CA f. Current Enlistment Date/Term: 16 August 2010, 5 years g. Current Enlistment Service: 2 years, 3 months, 26 days h. Total Service: 2 years, 3 months, 26 days i. Time Lost: None j. Previous Discharges: DEP, (090923-100815) k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 31B10, Military Police m. GT Score: 103 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM; GWOTSM; ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 16 August 2010, for a period of 5 years. She was 18 years old at the time of entry and a high school graduate. She was trained in and awarded military occupational specialty (MOS) 31B10, Military Police. Her record documents no acts of valor or significant achievement. She completed 2 years, 3 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 22 October 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraphs 14-12b, 14-12c, and 14-12c(2), AR 635-200, by reason of pattern of misconduct, commission of a serious offense, and abuse of illegal drugs for the following offenses: a. violating NTC Policy Letter Number 23, Prohibited Activities and Items, paragraph 3(i), dated 22 September 2011, by wrongfully using spice (120101-120131); b. violating a no contact order against PFC D (120313); c. being derelict in her duties as a military police officer, by allowing other Soldiers to smoke spice in her presence and in her room on divers occasions; and d. aiding PFC D in breaking his restriction (120313). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of her rights. 3. On 13 November 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on her own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander’s recommendation is not available in the records. 4. On 29 November 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 11 December 2012, 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 a 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. Article 15, dated 11 May 2012, for aiding a Soldier in breaking restriction (120313). The punishment consisted of reduction to the grade of E-2, forfeiture of $835 per month for two months (suspended), and 14 days of restriction (FG). 2. Two negative counseling statements, dated 15 February 2012, and 15 October 2012, for being recommended for separation as a result of an investigation and informational counseling to not have any contact with an enlisted Soldier PFC D. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 27 August 2014; DD Form 214; a three page self-authored letter, dated 26 August 2014; several letters of support; two undated character references from SPC B (the applicant’s accuser) and Mr. S (the applicant’s general manager from her job); copy of developmental counseling, dated 31 October 2011; certificate of achievement from the Director of Emergency Services Office of the Provost Marshal; copy of ACSAP Certificate of Continuing Education, dated 30 August 2012; certification from Phi Theta Kappa, dated 23 November 2014; an advising report from Dallas County Community College District, dated 30 December 2014; and a copy of a memorandum of Completion of Alcohol and Drug Abuse Prevention Training/Prime for Life (ADAPT/PFL) Course, dated 24 May 2012. POST-SERVICE ACTIVITY: The applicant works for Liberty Burger since 8 January 2013. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of her discharge was carefully considered. However, after examining the applicant’s record of service, her 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 her 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 violated 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 incidental serious incidents of misconduct, the applicant knowingly risked a military career and diminished the quality of her service below that meriting an honorable discharge. The applicant’s record of service was marred by an Article 15 action for violation of the Uniform Code of Military Justice 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 there was no investigation of any sort to prove she used an illegal substance. She was wrongfully discharged based on the statement of SPC B., who has written a letter on her behalf stating that the comments he made in his sworn statement dated 26 July 2012, were lies when he said, “he saw the applicant get high once.” However, SPC B. answered several questions concerning the applicant use of the illegal substance and told the investigation officer not only how many time he saw her smoke, but how much she smoked and where she smoked. These statements and the statement the applicant provided along with her application are contradictory; it creates doubt whether SPC B. is telling the truth now. 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 convincing evidence to support the contention that she was unjustly discriminated. In fact, the applicant’s two Articles 15 action and negative counseling statements justify serious incidents of misconduct. 5. The third party statements previously considered in her separation proceedings speak highly of the applicant’s performances, as well as a supporting statement that refuted her participation in an offense used as basis for her separation, and a subsequent character reference statement which recognizes her exception performance and conduct after leaving the Army. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity or consideration toward upgrading her discharge. 6. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 9 February 2015 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: Texas Department of Public Safety (Negative criminal history) – 2 pages 2. The applicant presented no additional contentions. In addition to the evidence in the record, the Board carefully considered the additional documents, and testimony, presented by the applicant at the personal appearance hearing. Board Vote: Character Change: 3 No Change: 2 Reason Change: NA No Change: NA (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Misconduct (Minor Infractions) Change Authority for Separation: AR 635-200, Paragraph 14-12a Change RE Code to: N/A Grade Restoration to: N/A Other: SPD Code to JKN 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) AR20140015655 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1