Applicant Name:  ?????

Application Receipt Date: 2011/01/24	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, through counsel, in effect, that he asks the Army Review Board to upgrade his general discharge to an honorable discharge.

Specific issues reviewed and considered are as follows:

ISSUE I:  It was an error for Mr. Westfield’s leadership not to refer him to ASAP for assessment, treatment, and rehabilitation, after his positive urinalysis.

ISSUE II:  It was error for Mr. Westfield’s leadership not to maintain, monitor, and complete the plan of action developed for Mr. Westfield during his mandatory counseling session.

ISSUE III:  It was error for the separation authority not to unequivocally approve Mr. Westfield’s waiver of his right to an administrative separation board hearing.

ISSUE IV:  It was error for the separation authority not to consider Mr. Westfield’s conditional waiver with regard to his waiver of administrative separation board hearing.

ISSUE V:  It was inequitable for Mr. Westfield’s leaders not to refer him to ASAP for assessment, treatment, and rehabilitation after his positive urinalysis.

ISSUE VI:  It was error and inequitable not to consider a rehabilitative transfer from combat after Mr. Westfield’s positive urinalysis.

ISSUE VII:  It was error and inequitable for leaders not to follow the Army’s Drug Testing Policies and the objectives they were set to serve.

He also asks the Army Review Board to change the narrative reason for discharge from misconduct.  It is his contention the Army made certain errors and inequitable decisions when carrying out his discharge.  His discharge is causing substantial hardship in his daily life including: disqualifying him for Post 9-11 G.I. Benefits, preventing him from obtaining employment, and preventing his re-enlistment.


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: 091030 Commander recommended retention.
Discharge Received: 			   Date: 100625   Chapter: 14-12c(2)    AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: HHB, 2-29 FA, 4th BCT, 1st AD, Fort Bliss, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 090718, wrongful use of 3,4-methylenedioxymethamphetamine (MDMA) (090417 – 090420), reduction to E-3, forfeiture of $930 pay per month for 2 months, suspended, to be automatically remitted if not vacated before (100117), and extra duty for 45 days, (FG).

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 070411    Current ENL Term: 4 Years  ?????
Current ENL Service: 	3  Yrs, 2 Mos, 14 Days ?????
Total Service:  		7  Yrs, 3 Mos, 21 Days ?????
Previous Discharges: 	RA 030305 - 070410/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 25U10 Signal Support Systems Specialist   GT: 99   EDU: HS Grad   Overseas: Germany, SWA   Combat: Iraq (041020 - 050210), (070422 - 071214), and (090507 - 100412)
Decorations/Awards: ICM w/CS x 4, ARCOM, AAM, MUC, VA, AGCM, NDSM, GWOTSM, ASR, OSR x 3

V.  Post-Discharge Activity
City, State:  Orlando. FL
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 30 October 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct, commission of a serious offense, for the wrongful use of a controlled substance by testing positive for 3,4-methylenedioxymethamphetamine (MDMA) (090420), and any other misconduct.  The unit commander recommended retention.  He was advised of his rights.  
       
       On 3 December 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and submitted a statement in his own behalf. 
       
       On 23 December 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an Administrative Separation Board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions and submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.
       
       On 3 February 2010, the applicant waived his opportunity to consult with counsel and unconditionally waived his right to an administrative separation board.
       
       On 22 February 2010 the separation authority suspended the applicant's discharge until 1 August 2010, not to exceed 12 months, at which time the discharge action if not executed was to be remitted in accordance with AR 635-200, paragraph 1-18. 
       
       On 1 June 2010, the separation authority notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct, commission of a serious offense, for being arrested for possession of an illegal substance (100526).  If the suspended separation was to be vacated the applicant would be discharged with a general, under honorable conditions characterization of service.  He was advised of his rights.  
       
       On 14 June 2010, the separation authority vacated the previously suspended discharge, waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

       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 the entire applicant’s military records, and the issue and documents 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 his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By his repeated incidents of 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.
       
       Issue I and VII are rejected.  AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states that the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  
       
       ISSUE II is rejected.  On 22 February 2010, the applicant received a suspension of his initial discharge.  Under pertinent Army regulations, such a suspension is granted to allow a highly deserving Soldier a probationary period to show successful rehabilitation.  The Soldier bears the responsibility to ensure his rehabilitation is successful.
       
       ISSUE III and IV are rejected.  On 3 February 2010, the applicant withdrew his contingent waiver request and waived his rights for an administrative board and his appearance in a board; therefore, any issue concerning an administrative board is moot.
       
       
       Issue V is rejected:  AR 600-85, paragraph 3-8 entitled self referrals; states that the applicant could have self referred himself to the Army Substance Abuse Program (ASAP) counseling center for assistance. On 26 May 2010, two ecstasy pills were found near the driver’s seat of the applicant’s car when it was searched during a traffic stop.  In pertinent part AR 635-220, states that if the Soldier engages in conduct similar to that for which separation was approved, but then was suspended, or otherwise fails to meet the appropriate standards of conduct and duty performance, the commander concerned, the convening authority, or the separation authority may initiate punitive or new administrative action in spite of the suspension of execution of the approved discharge. 
       
       ISSUE VI is rejected.  The separation authority may waive rehabilitative transfer at any time on or before the date separation proceedings are approved or disapproved.  The decision to grant or waive rehabilitate transfers rests with the separation authority.  The analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
       
       
       
       
       
       
       
       
       Additional issues noted:
       
       The applicant asks the Army Review Board to change the narrative reason for discharge from misconduct.  The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)", and the separation code is "JKK."  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 entered 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.  
       
       His discharge is causing substantial hardship in his daily life including: disqualifying him for Post 9-11 G.I. Benefits, preventing him from obtaining employment, and preventing his re-enlistment.  Eligibility for veteran's 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 Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment.  
       
       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: 14 October 2011         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel:  [ redacted ]

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 with a legal brief, award recommendation, various memoranda, couseling form, Article 15, selected portions from the discharge packet, and a DD Form 214.

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
(Board member names available upon request)
								         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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA



























Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110001699
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