1. Applicant's Name: a. Application Date: 26 October 2017 b. Date Received: 30 October 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of a general (under honorable conditions) discharge to honorable and to change the narrative reason for discharge. The counsel, on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant's discharge was the result of two improper command decisions; in that the Commander imposing the Article 15 abused his discretion as AR 27-10, paragraph 3-16d(4) states that before finding a Soldier guilty, the Commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses. The evidence presented failed to prove that the applicant distributed pills or steroids, nor was there any evidence that showed the applicant tested positive for any anabolic steroids, according to the applicant's test as "Specimen 5." The applicant was unjustly found guilty at the Article 15 hearing. Second, the separation authority, unreasonably vacated the suspension for minor offenses. The applicant served nearly five years in the Army, 18 months of which were in Iraq. The applicant participated in over 50 combat missions, providing protective service during 20 key leader engagements, and training 20 Iraqi police academy instructors. The applicant is currently ineligible to receive the benefits created by Congress for Service Members who experienced the trauma of 50 combat missions. In a personal appearance hearing conducted at Arlington, VA on 16 July 2018, and by a 5-0 vote, the Board determined the discharge is improper based on the applicant's length and quality of service, to include combat service, and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, changed the separation authority to AR 635-200, paragraph 5-3, the narrative reason for separation to Secretarial Authority, and a corresponding separation code to JFF. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct / AR 635-200, Paragraph 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 9 September 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 August 2011 and 25 May 2011 (suspended) (2) Basis for Separation: The applicant was informed of the following reasons: On 13 December 2010, during a health and welfare inspection of CPL X, his chain of command found approximately 129 pink pentagon-shape pills, believed to be anabolic steroids. CPL X. admitted to SA X. (CID) that he purchased the pills from the applicant around 9 December 2010, for $250 through an Eagle Cash card transfer. An undercover CID source also identified the applicant as a steroid distributor. The undercover source witnessed the applicant selling steroids to multiple PSD Soldiers, to include PVT X., between 11 November 2010 and 11 December 2010. PVT X. subsequently failed a urinalysis for anabolic steroids. On 16 May 2011, the applicant received a FG Article 15 for the offenses he committed. On 3 August 2011, the applicant was further informed that consideration of vacating his 5 June 2011, suspended separation due to the following misconduct: that on 10 June 2011, he was caught wearing PFC rank by SSG X; when questioned, he made a false official statement that he was a PFC; and on 19 July 2011 and 21 July 2011, he failed to report to accountability formations. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 3 August 2011 (consideration to vacate) and 30 May 2011 (suspended) (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: By an undated memorandum, the separation authority vacated the 5 June 2011, suspended separation / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 September 2006 / 5 years (ERB, dated 1 September 2011, shows ETS date of 12 September 2011) b. Age at Enlistment / Education / GT Score: 18 / GED / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, 2B Military Police / 4 years, 11 months, 27 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (12 September 2010 to 9 June 2011) per ERB f. Awards and Decorations: AAM-2; AGCM; NDSM; ICM-2CS; GWOTSM; ASR; OSR-2; MUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 16 May 2011, for wrongfully distributing over 100 pills of Anabolic Steroids, a Schedule III controlled substance between 11 November 2010 and 11 December 2010, and violating a lawful general order by distributing Anabolic Steroids between 11 November 2010 and 11 December 2010. The punishment consisted of a reduction to E-2, forfeiture of $822 pay per month for two months (suspended), and 45 days of extra duty and restriction. Report of Mental Status Evaluation, dated 14 April 2011, provided no diagnosis but psychiatrically cleared the applicant for any administrative action deemed appropriate by his command. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 26 October 2017; attorney-authored brief, dated 28 September 2017; DD Form 214; previous records review case file (AR20130004796), dated 11 September 2013; Recommendation for Award; FG Article 15, dated 16 May 2011; separation case file decision memoranda; extracted copy of AR 27-10, paragraph 3-16c(4) highlighted; two sworn statements, date 13 December 2010; CID Report, Agent's Investigation Report, dated 29 December 2010; five sworn statements, dated 13 December 2010, 3 January 2011, 15 March 2011, 17 March 2011, 4 January 2011; CID Report, Agent's Investigation Report, dated as "XX" January 2011; Commander's Authorization to Search, dated 14 December 2010, with list of names and assigned "Chu Number"; CID Report, Agent's Investigation Report, dated 13 December 2010; extracted copy of DA Pamphlet 27-9, paragraph 2-5-12 highlighted; two separate senior defense counsel memoranda, dated 9 May 2011, and 19 May 2011; DD Form 2624 (Specimen Custody Document - Drug Testing), dated 22 February 2011; Drug Testing Report for Specimen Number MSTE0208004 assigned to last SSN "3798," dated 22 February 2011; and Medical Record Consultation Sheet pertaining to SSN "3798." 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 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. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms that 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. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By distributing illegal drugs, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. The service record further reflects that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, paragraph 14- 12c(2), block 26 separation code as "JKK," block 27 reentry code as "4," and block 28, narrative reason for separation as "Misconduct." Therefore and as approved by the separation authority, the following administrative corrections are warranted: a. block 25, separation authority to AR 635-200, Chapter 14-12c; b. block 26, separation code to JKQ; c. block 27, reentry code to 3; and d. block 28, reason for separation to Misconduct (Serious Offense). 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 the discharge was inequitable and improper because the evidence failed to prove that the applicant distributed pills or steroids, nor was there any evidence that showed he tested positive for any anabolic steroids, instead he was unjustly found guilty at his Article 15 hearing, and the separation authority unreasonably vacated the suspension for minor offenses. 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 issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. 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 and to change the narrative reason for his discharge. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The applicant contends that an upgrade of his discharge would allow him to receive all his veterans' benefits. However, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 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 document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): Character Letters (5 pages): a. Heather Clay b. James R. Langlois c. SSG Floyd C. Soriano d. Alejandro Ortiz e. SMsgt (Ret) Rudy Pino b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): Rudy Pino - Father 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 16 July 2018, and by a 5-0 vote, the Board determined the discharge is improper based on the applicant's length and quality of service, to include combat service, and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, changed the separation authority to AR 635-200, paragraph 5-3, the narrative reason for separation to Secretarial Authority, and a corresponding separation code to JFF. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / 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 AR20170016716 1