1. Applicant's Name: a. Application Date: 19 July 2016 b. Date Received: 22 July 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through legal counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a change to his narrative reason for discharge to reflect "expiration term of service." The applicant seeks relief contending, in effect, the discharge was improper because it was initiated and recommended by a new commander who erroneously failed to advise the separation authority that the applicant was a combat veteran of the war in Iraq and that he had earned his silver spurs. Furthermore, the applicant's discharge was inequitable because the discharge was initiated and recommended by a new commander who was unfamiliar with the applicant's record of exemplary military service, to include his combat service in Iraq. Counsel contends that the facts submitted with the application established thoroughly that the applicant's military service had been exceptional and that his single drug was an aberration and not indicative of his character. The case further establishes that the applicant was prejudiced when his brand new commander failed to consider the applicant military service and erroneously recommended that the applicant be separated from the Army. Moreover, and more importantly the evidence also establishes that in failing to provide the separation authority with the awards and citations as well as "other data meriting consideration in the overall evaluation to separate the applicant, the applicant was prejudiced. In a personal appearance hearing conducted at San Antonio, TX on 22 March 2017, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, Paragraph 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 11 June 2013 c. Separation Facts: The applicant's separation file was not found in the available record; however, the applicant's legal counsel submitted a partial copy of the separation file. (1) Date of Notification of Intent to Separate: 7 May 2013 (2) Basis for Separation: The applicant wrongfully used MDA (18 March 2013). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 17 May 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 August 2010 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19D10, Cavalry Scout / 2 years, 10 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (28 May 2011 to 21 November 2011) f. Awards and Decorations: ARCOM, MUC, NDSM, ICM-CS, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 23 April 2013, for wrongfully using MDA (18 March 2013). The punishment consisted of a reduction to E-1, forfeiture of $758 pay for two months, and extra duty and restriction for 45 days. Negative counseling statement for testing positive on a UA for MDA. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with attachments listed in blocks 8 and 14 of the application; DD Form 214; and legal brief. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has earned two years of college credit and has been admitted to the University of Texas, San Antonio, where he will begin his third year in the Fall of 2016. 7. REGULATORY CITATION(S): 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. Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a or 14-12b as appropriate. 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). 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. 8. DISCUSSION OF FACT(S): The applicant, through legal counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a change to his narrative reason for discharge to reflect "expiration term of service." The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. 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 military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. Furthermore, by violating the Army's policy not to possess or use illegal drugs, the applicant 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, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. The appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged for drug offenses is "JKK" and the RE code is 4. The regulation further stipulates that no deviation is authorized. 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, such that he should have been retained on Active duty. The applicant contends his discharge was improper because it was initiated and recommended by a new commander who erroneously failed to advise the separation authority that the applicant was a combat veteran of the war in Iraq; that he had earned his silver spurs; and that his discharge was initiated and recommended by a new commander who was unfamiliar with the applicant's record of exemplary military service. The applicant contentions were noted; 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 all factors were not taken into consideration by the separation authority prior to his decision to discharge the applicant. As noted in the notification memorandum signed by the applicant on 7 May 2013, he had the right to consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time (not less than three duty days), he could submit written statements in his behalf, and he could have obtained copies of documents that would be sent to the separation authority supporting the proposed separation (classified documents could have been summarized). Although the applicant's separation file was not found in the available record, documents submitted by the applicant and his legal counsel is void of the applicant's election of rights memorandum indicating he submitted matter or that he chose not to. The applicant contends he was the embodiment of the very type of Soldier the Army did not want thrown away, thrown out of the Army for a single drug use. The facts submitted with the application established thoroughly that the applicant's military service had been exceptional and that his single drug was an aberration and not indicative of his character. The evidence in the case furthermore established that the applicant was prejudiced when his brand new commander failed to consider the applicant military service and erroneously recommended that the applicant be separated from the Army. Moreover, and more importantly the evidence also establishes that in failing to provide the separation authority with the awards and citations as well as "other data meriting consideration in the overall evaluation to separate the applicant, the applicant was prejudiced. However, 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 a single incident provides the basis for a characterization. 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. Furthermore, by regulation, an under other than honorable conditions (UOTHC) discharge is normally appropriate for a member separated by reason of misconduct (drug abuse). It appears the applicant's generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. 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. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 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. a. The applicant submitted the following additional document(s): College Transcripts - 2 pages b. The applicant presented no additional contentions. c. Witness(es) / Observer(s): Gary Kay - Father (W) 10. BOARD DETERMINATION: In a personal appearance hearing conducted at San Antonio, TX on 22 March 2017, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD / RE Code to: No Change e. Restore (Restoration of) Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160013371 1