Applicant Name:  ?????

Application Receipt Date: 2011/06/09	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to fully honorable.  He contends he was not afforded adequate time to consult with legal counsel.  

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: 100511
Discharge Received: 			   Date: 110418   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: 289th QM Co, 533rd CSSB Bn, Fort Hood, TX  

Time Lost: None

Article 15s (Charges/Dates/Punishment): 091214, wrongfully used marijuana (090901-091001); reduction to E-3, forfeiture of $929 pay (suspended), extra duty for 45 days, and restriction for 15 days (suspended), (FG).  

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 081009    Current ENL Term: 03 Years  00
Current ENL Service: 	02  Yrs, 06 Mos, 10 Days ?????
Total Service:  		07  Yrs, 05 Mos, 18  Days ?????
Previous Discharges: 	ARNG-030925-040112/NA
                                       IADT-040113-041022/HD
                                       ARNG-041023-041209/NA
                                       AD-041210-050613/NA
                                       ARNG-050614-050829/NA
                                       AD-050830-051231/HD
                                       ARNG-060101-081008/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92A10 Automated Logistical Spec   GT: 97   EDU: GED   Overseas: Southwest Asia   Combat: Iraq (061008-070928)
Decorations/Awards: AAM, AGCM-2, NDSM, ICM-W/CS, GWOTSM, HSM, AFRM-W/"M" DEV, ASR, OSR, 

V.  Post-Discharge Activity
City, State:  Killeen, Texas   
Post Service Accomplishments: None Listed



 


VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 27 April 2010, 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/abuse of illegal drugs for testing positive for marijuana (091201), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 28 April 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board 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 and senior intermediate commanders reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  
       
       On 9 November 2010, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 30 November 2010, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended the applicant be discharged with issuance of a character of service of under other than honorable conditions and suspend the separation action for twelve (12) months.
         
       On 23 March 2011, the separation authority approved the findings and recommendations of the administrative separation board in part and directed the applicant’s discharge with a characterization of service of  under other than honorable conditions.  The applicant was to be reduced to the lowest enlisted rank. 

       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 during the period of enlistment under review, the issue and documents submitted with the application, the analyst found several mitigating factors which would merit a partial upgrade of the applicant's characterization of service to general, under honorable conditions.  
       
       This recommendation was made after full consideration of his faithful and honorable service, as well as the applicant's record of misconduct.  The analyst does not condone his misconduct; however, the evidence in this case supports a conclusion that the characterization of service is too harsh, and as a result it is inequitable.  The analyst found the overall length and quality of the applicant's service,  to include this combat service mitigated the discrediting entry in his service record.  
       
       Accordingly, the analyst recommends to the Board that partial relief be granted in the form of an upgrade of the applicant's characterization of service to general, under honorable conditions.  However, the analyst determined the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.   This action entails a restoration of grade to PFC/E-3.  
       
       Furthermore, by abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of service below that meriting a fully honorable discharge. 
       
       
       
       
       
       Also, the applicant contends he was not afforded adequate time to consult with legal counsel.  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 issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was not afforded adequate time to consult with legal counsel.
       
VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 11 January 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (110527); Letter, Chief, Congressional and Special Actions, dated (110621); Control Sheet from SFMR-RBX-A, dated (110615); Congressional FOUO, dated (110615); Letter, House of Representatives, dated (110607); Case Information and Private Release Form, dated (110428); Applicant's Statement; DD Form 214, dated (110518); Chapter 14 Discharge Packet consisting of 15 pages. 

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 characterization of service is too harsh, and as a result it is inequitable.  The Board determined that the overall length and quality of the applicant’s service, to include his combat service, and his chain of command recommended a general, under honorable conditions discharge, 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 general, under honorable conditions.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it.  This action entails a restoration of grade to PFC/E-3. 























 
        
IX.  Board Decision						
Board Vote:
Character - Change 4    No change 1
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: PFC/E-3

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
?????

























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 AR20110011940
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