Applicant Name: ????? Application Receipt Date: 2009/02/11 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293 and attached documents submitted by the applicant. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 080919 Discharge Received: Date: 081003 Chapter: 14-12c(2) AR: 635-200 Reason: Misconduct, (Drug Abuse) RE: SPD: JKK Unit/Location: 59th Military Police Battalion, Fort Carson, Colorado Time Lost: None Article 15s (Charges/Dates/Punishment): 080717, Wrongful use of marijuana (080406 and 080506), reduction to the grade of E3; forfeiture of $417.00 pay for 1 month, suspended, to be automatically remitted if not vacated by 090113; extra duty for 14 days; restriction to the 759th MP Battalion area for 14 days (CG). Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 18 Current ENL Date: 050707 Current ENL Term: 03 Years 23 weeks Current ENL Service: 3 Yrs, 02Mos, 27Days ????? Total Service: 3 Yrs, 02Mos, 27Days ????? Previous Discharges: None Highest Grade: E4 Performance Ratings Available: Yes No MOS: 63B10/Wheeled Vehicle Mechanic GT: 99 EDU: HS Grad Overseas: NIF Combat: NIF Decorations/Awards: NDSM, GWOTSM, ASR (Listed on Commander's separation notification.) V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None submitted by applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 16 September 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 12c(2), AR 635-200, by reason of misconduct for commission of a serious offense in that on at least two occasions for wrongful use of marijuana (080406 and 080506), with a general, under honorable conditions discharge. He was advised of his rights. The applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. On 22 September 2008, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. The analyst noted that the evidence of record shows the applicant was initially notified that he was being separated under the provisions of Chapter 14, Paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense. However, AR 635-200, Chapter 2, Procedures for Separation, Section I, Notification Procedure 2-1a, Application, the procedures in this chapter will be followed when required by specific reason or reasons for separation. Paragraph 2-1b, when a Soldier is subject to separation for more than one reason, the following guidelines apply to procedural requirements (including procedural limitations on characterization of service or description of separation): (1) the basis for each reason must be clearly established. Chapter 2, paragraph 2-2a, the commander will cite specific allegations on which the proposed action is based and will also include the specific provisions of this regulation authorizing separation. The record shows that the applicant was specifically notified that he was being separated for commission of a serious offense, due to his positive urinalysis for marijuana dated 06 April 2008 and 06 May 2008, and the entire separation packet to include his Article 15 alludes to the applicant's serious misconduct due to his use of marijuana. The analyst acknowledges that the separation packet does not contain the (2), which implies abuse of illegal drugs and that command inadvertently omitted the (2). Chapter 14, AR 635-200, Section III, acts or patterns of misconduct, 14-12, conditions that subject Soldiers to discharge; 14-12c, commission of a serious offense; indicates commission of a serious military or civil 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 MCM. However, the specific circumstances of the offense warranted separation and the applicant was notified that he was being specifically separated for testing positive for marijuana, which based on the evidence of record, the command's intent was for abuse of illegal drugs, which is serious misconduct. Further evidence in the record to support this rationale was that at the time the applicant was separated, someone in the discharge process issued the applicant a DD Form 214 which shows the authority for separation was AR 635-200, Paragraph 14-12c(2) and the narrative for separation was misconduct (drug abuse), with the separation (SPD) code of "JKK," and a reentry eligibility (RE) code of "4," in compliance with AR 635-5-1, which was authenticated by the applicant and the official authorized to sign the DD Form 214. Notwithstanding this, the analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case. Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error. The applicant had a record of misconduct; a positive urinalysis for marijuana. The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation 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 absence 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. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, and the issue submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The applicant’s discharge was appropriate because the quality of the former Soldier’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. By the misconduct, the applicant diminished the quality of service below that meriting a fully honorable discharge. 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. Furthermore, the analyst noted the applicant's issue, however, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 18 November 2009 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: ????? Witnesses/Observers: ????? Exhibits Submitted: ????? VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change 0 No change 5 EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20090006257 ______________________________________________________________________________ Page 3 of 3 pages