Application Receipt Date: 070308	

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change    

Issues: See applicant's attached DD Form 293 and supporting documents.

II.  Were Proper Discharge and Separation Authority procedures followed?  
Yes    No        Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: 050311
Discharge Received:     Date: 060202   
Chapter: 14    AR: 635-200
Reason: Misconduct (Drug Abuse)
RE:     SPD: JKK
Unit/Location: 458th Engineer Battalion, 443N 4th Street, Indiana, PA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 040706/Wrongful use of marijuana on or between (031103 and 031203)/(Field Grade)

Court-Martials (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  
Current ENL Date: 031116/OAD    Current ENL Term: 03 Years  ?????
Current ENL Service: 02 Yrs, 02Mos, 17Days ?????
Total Service:  10 Yrs, 01Mos, 17Days ?????
Previous Discharges: USAR-951216-960710/NA
                                      ADT-960711-961112/UNC
                                      USAR-961113-980401/NA
                                      USARCG-980402-980622/NA
                                      USAR980623-000000/NA
                                      USARCG-000000-030219/NA
                                      USAR-030220-031029/NA
                                      USAR-031030-031115/(Current Service)
Highest Grade: E5
Performance Ratings Available: Yes    No 
MOS: 88M10 (Motor Transportation Operator)   GT: 96   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (Period of service not found in available record)
Decorations/Awards: ARCOM, ASR, Cerrtificate of Achievement
V.  Post-Discharge Activity
Home of Record: 
Current Address: 
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      Evidence of record shows that on 11 March 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct—commission of serious offenses (tested positive for the use of marijuana (THC) 3 December 2003 and 12 February 2005), with an under other than 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.  On 11 March 2005, the applicant requested consideration of his case by an Administrative Separation Board.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts with an under other than honorable conditions discharge.  The intermediate and senior intermediate commander's reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 3 October 2005, the applicant was notified to appear before an Involuntary Administrative Separation Board on 29 October 2005, and advised of his rights.  On 11 October 2005, the applicant again consulted with legal counsel and voluntarily waived consideration of his case by an Administrative Separation Board, contingent upon receiving a characterization of service no less favorable than a general, under honorable conditions discharge.  On 15 October 2005, a memorandum from the Command Judge Advocate stated that the applicants Commander, Battallion and Brigade Commanders, did not oppose to the applicant's request.  On 16 October 2005, the separation authority accepted the applicant's conditional waiver, waived further rehabilitative efforts and directed that the applicant be discharged from the US Army Reserve with a characterization of service of general, under honorable conditions.  On 9 January 2006, DA, US Army Human Resources Command, St. Louis, MO 63132-5200, Orders D-01-690007, discharged the applicant from the United States Army Reserve/Active Guard Reserve, effective date:  2 February 2006.

      b.  Legal Basis for Separation:  
      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 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, but a general discharge 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 available military records, documents, and the issues he submitted, 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 his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By his misconduct, the applicant diminished the quality of his 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 record does not support the applicant’s contention that he suffers from Post Traumatic Stress symptons and no evidence to support it has been submitted by the applicant, that his discharge was the result of any medical condition.  Additionally, the analyst noted that item 27 (Reentry Code) on the applicant's DD Form 214 reads "NA."  The  reentry eligibility code (RE) specified by Army Regulations 635-5-1 for Soldiers being discharge by reason of misconduct (drug abuse) requires a reentry eligibility code of "4."  An RE code of “4” can not be waived and the applicant is no longer eligible for reenlistment.  In view of the foregoing, the analyst determined the reason for discharge and the characterization of service were both proper and equitable.
      
VII.  Summary of Army Discharge Review Board Hearing 

Hearing Type:  Date: 15 October 2007 Location: Washington, DC
Did the Applicant Testify?  Yes     No  

Counsel:Yes [redacted]

Witnesses/Observers: Yes [wife] 

Exhibits Submitted: None

VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change 3    No change 2   - Character
		 			      Change 0    No change 5   - Reason
					      (Board member names available upon request)

IX.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh, and as a result it is inequitable.  The Board found that the applicant's length of service, to include his combat service mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it. 

Case report reviewed and verified by: , Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: NA
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: NA

XI.  Certification Signature and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 

CHRISTINE U. MARTINSON			DATE: 30 October 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE