IN THE CASE OF: BOARD DATE: 17 November 2014 CASE NUMBER: AR20140016198 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review, and notwithstanding the Discussion and Recommendation that follows, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant's service, the circumstances surrounding his discharge involving ineffective legal representation, irregular urinalysis testing procedures, and his post service accomplishments and responsibilities, while working as a contractor with the US Army and deployed to Iraq, completing an academic degree since his discharge, 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, and a change to the narrative reason for separation to Unqualified Resignation, AR 600-8-24, chapter 3, paragraph 3-5, and SPD Code FND. 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, and to change the narrative reason and its corresponding separation code of his discharge. 2. The applicant states, in pertinent part and in effect, his discharge was in error and unjust because he had an ineffective counsel who was not prepared at his hearing and allowed introduction of inappropriate evidence; the likelihood of innocent ingestion; his service records suggest that the positive urinalysis did not result in any intentional misconduct (his exceptional military record and character are the main evidence of his innocence of the incident that led to his separation); and irrelevant evidence being introduced during the board prejudiced the board members; wherein, his counsel’s pre-administrative separation board negotiations to resign in exchange for an honorable discharge to which the applicant did not agree or authorized him to. He adds he was never referred to ASAP. His honorable service record, including his awards and decorations and his post-service achievements (he is now a contractor with the US Army, deployed to Iraq and got promoted, and he is also completing an academic degree) are mitigating factors for consideration toward his request for an upgrade. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 15 September 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 12 November 2009 d. Reason/Authority/SPD/RE Code: Unacceptable Conduct, AR 600-8-24, Paragraph 4-2b JNC, NA e. Unit of assignment: A Co, 1/228th Aviation Regiment, Soto Cano Air Base Honduras f. Current Enlistment Date/Term: 16 May 2006, 6 years g. Current Enlistment Service: 3 years, 5 months, 27 days h. Total Service: 7 years, 1 day i. Time Lost: None j. Previous Discharges: RA (021112-060515) / HD / 6 years k. Highest Grade Achieved: CW2 l. Military Occupational Specialty: 153D0, UH-60 Pilot m. GT Score: NA n. Education: HS Graduate o. Overseas Service: Hawaii, SWA, Honduras p. Combat Service: Afghanistan (040414-050414) q. Decorations/Awards: AM; ARCOM-2; AAM; AGCM; NDSM; ACM-CS GWOTEM; GWOTSM; ASR; OSR-2 r. Administrative Separation Board: No, but a show cause board s. Performance Ratings: Yes t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 12 November 2002, and on 20 March 2006, he applied for active duty for a period of 6 years. On 16 May 2006, he accepted an appointment to WO1. He was 21 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 153D0, UH-60 Pilot. He served in Hawaii, Afghanistan, and Honduras. He was awarded an AM, two ARCOMs, and an AAM. He completed 7 years and 1 day of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows that on 24 October 2008 and 25 February 2009, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraph 4-2(b), AR 600-8-24, by reason of misconduct, moral or professional dereliction. 2. The applicant was directed to show cause for retention in the Army after testing positive for cocaine on or about 24-25 June 2008. He was advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a Board of Inquiry. 3. On 16 June 2009, the applicant appeared with counsel before a Board of Inquiry (Show Cause Board). The Board found the applicant committed an act of personal misconduct by wrongfully using cocaine between 14 June 2008 and 25 June 2008, and engaged in conduct unbecoming an officer. The Board recommended separation with a general, under honorable conditions discharge. 4. The DA Ad Hoc Review Board recommended the applicant’s elimination action be accepted with issuance of a general, under honorable conditions discharge. 5. On 29 October 2009, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 6. The applicant was discharged from the Army on 12 November 2009, with a characterization of service of general, under honorable conditions. 7. 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 a positive urinalysis report contained in the record: IR, Inspection Random, 25 June 2008, cocaine. 2. A General Officer Memorandum of Reprimand (GOMOR), dated 24 September 2008, for wrongfully using cocaine. 3. DA Form 1059, Service School Academic Evaluation Report, 16 April 2008, indicates the applicant achieved the course standards of the Aviation Warrant Officer Basic Class. 4. A CID Report, dated 28 July 2008, indicates the applicant was the subject of an investigation for wrongful use of cocaine. 5. A referred “Extended Annual” OER covering the period of 15 May 2006 to 29 April 2009. The applicant was rated as “Unsatisfactory Performance, Do Not Promote” and received a “Do Not Promote” rating from the senior rater. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored petition and enclosures: seven certificates of achievements and completion; letter of recommendation, CW5 D, 29 August 2004; DA Form 6256, Alternate Flight Aptitude Selection Test; Academic Evaluation Report, 16 April 2008; ORB, 19 August 2008; statement, SFC C, 16 April 2014; personal self-authored statement; memorandum, Log in Error, 15 July 2008 (1st of three copies of same memoranda) and positive drug report with chain of custody documents; affidavit, CW4 M, 6 April 2014; memorandum for record, CW2 K, 21 November 2008; affidavit, CW2 B, 29 March 2014; DD Form 2824, 16 July 2008; GOMOR, 24 September 2008; affidavit, spouse, 25 April 2014; response to GOMOR, 10 October 2008; chain of command filing recommendations, 21 October 2008; T’s flight schedule, 23 June 2008; maneuver procedure grade slips; delay request, 26 November 2008; denial of delay request, 15 December 2008; email correspondences, 14 April 2009; affidavit, Mr. M, 13 April 2014; affidavit, Mr. C, 23 April 2014; polygraph test, 10 March 2014; civilian achievements; memorandum for record, 15 July 2008 (3rd copy); NIH study with charts; and Dr. B’s report, 5 September 2014. POST-SERVICE ACTIVITY: The applicant states, in effect, he is currently a contractor with the US Army as a schedule maintenance and confined space safety program manager; he deployed to Iraq and got promoted; and he is also completing an academic degree in professional aeronautics. REGULATORY AUTHORITY: 1.  Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. 2. AR 600-8-24, paragraph 1-22a, provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 3. A general under honorable conditions characterization of service will normally be issued to an officer when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A separation under honorable conditions will normally be appropriate when an officer submits an unqualified resignation or a request for relief from active duty under circumstances involving misconduct which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate. 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 "JNC" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 4, paragraph 4-2b, unacceptable conduct. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and to change the narrative reason and its corresponding separation code for his discharge was carefully considered. However, after examining the applicant’s record of service, and the documents and 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 and its corresponding separation code for his 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. By the serious incident of unacceptable conduct, the applicant diminished the quality of his service below that meriting an honorable discharge. 3. The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance. Further, the applicant’s record contains no evidence of arbitrary or capricious actions by the command. 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 the discharge was unjust and in error because of the numerous issues outlined at the preceding page of this report. 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. In fact, the applicant’s GOMOR and its appended documented evidence upon which it was issued him, justify a serious incident 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 sufficient evidence has been provided with the request for an upgrade of the discharge or to change the narrative reason and its corresponding separation code for his discharge . 5. The applicant contends that he served honorably with numerous decorations and awards. The applicant’s overall service and accomplishments were carefully considered; however, this service was not sufficiently mitigating to warrant an upgrade as shown by the serious incident of an unacceptable behavior as reflected on the GOMOR contained in his service record. 6. The applicant’s post-service accomplishments were also noted as outlined on the application; however, these accomplishments did not overcome the reason for discharge and characterization of service granted. 7. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 4, paragraph 4-2b, AR 635-200 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "JNC." 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. 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 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: 17 November 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: Yes DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional document: Department of Veterans Affairs letter from Ms. E.S.M., LCSW, PIP (1 pg) 2. 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: 4 No Change: 1 Reason Change: 4 No Change: 1 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Unqualified Resignation Change Authority for Separation: AR 600-8-24, Chapter 3, Paragraph 3-5 Change RE Code to: NA Grade Restoration to: NA Other: SPD Code to FND 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) AR20140016198 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1