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ARMY | DRB | CY2000 | 2000039935
Original file (2000039935.rtf) Auto-classification: Approved
PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: Under Other Than Honorable Conditions

2. Date of discharge (or REFRAD): 980107

3. Authority for separation:

         a. Regulation: Chapter 7, Paragraph 7-11c (1), AR 135-178

          b. Reason: Abuse of Illegal Drugs
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            C/Ach
a. Period entered for: 6 Years
b. Entry date: 930206
c. Age: 33 Years DOB: 591106
d. Educational level: HS Grad
e. Aptitude area score:
          GT: NIF 3. Highest grade achieved:
f. Length of Service: E5
4 Year(s) 11 Month(s) 2 Day(s)

4. Performance evaluations:
See OMPF

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence: NONE

 Status Inclusive dates
         AWOL

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment: NONE
         Date     Offense(s)
        


7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: NONE
SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         RA 790615 830614 HD
         USAR 840501 870320 NIF
         USAR 870321 930205 NIF



PART IV - PREHEARING REVIEW

SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:

          a. The evidence of record shows that on 20 October 1997, the unit commander notified the applicant of initiation of a separation board under the provisions of Chapter 7, AR 135-178 paragraph 11c (1) for misconduct-abuse of illegal drugs. The letter of notification was returned unclaimed after three attempts at delivery. The applicant’s failure to claim the letter and respond constituted a waiver of his rights under the provisions of AR 135-178. On 6 December 1997, the unit commander recommended separation with a general, under honorable conditions discharge. The intermediate commanders recommended approval with a general, under honorable conditions discharge. On 7 December 1997, the Staff Judge Advocate recommended separation with an under other than honorable conditions discharge. On 7 January 1998, Department of the Army, Headquarters, 80th Division (Institutional Training), Richmond, Virginia Orders 007-4, discharged the applicant from the United States Army Reserve under the provisions of AR 135-178 with an under other than honorable conditions discharge.
         b. On 7 January 1998, the applicant was discharged. He was credited with
4 years, 11 months, and 2 days active service on the enlistment under review and 18 years, 6 months, and 22 days total time in service.

          c. The unit commander recommended the applicant be separated from the Army because he tested positive for cocaine on a unit urinalysis test. The applicant stated the test was faulty; however, he did not provide any independent corroborating evidence to the contrary.

2. Legal/Regulatory Basis for Separation Action : Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct, including unsatisfactory participation. When discharged under this provision, Army policy states that the characterization of service will normally be under other than honorable conditions.
SECTION B-APPLICANT’S SUBMISSIONS


 1. Issue(s) of propriety and/or equity submitted by applicant or counsel.
As stated on applicant’s DD Form 293.
2. Exhibit(s) submitted:

         A-1: DD Form 293, dated 000314, with nine (9) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE

PART IV - PREHEARING REVIEW (CONTINUED)



SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor ( ) Legal Advisor



 a. Medical prehearing comments (if applicable):

b. Legal prehearing comments (if applicable):
PART V - SUMMARY OF HEARING

SECTION A-Attendees and exhibits

1. Review/hearing information:

         a. Type requested:
         ( ) Records review ( X ) Hearing

         b. Type Held:
         ( )Records review ( X ) Hearing
         ( ) Tender Offer
         c. Review/hearing location and date: Washington, DC on 5 June 2000

         d. Appearance by:
         Applicant ( X ) Yes ( ) No
         Counsel ( X ) Yes ( ) No

          e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( X ) Yes ( ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing: Two issues and six (6) documents.

PART VI - ISSUES AND FINDINGS

1. a. Applicant's issue(s) of propriety and/or equity:

          ( X )   Same as those listed on DD Form 293 and Part IV, Section A of this case report and directive.
         ( )     Revised issue(s) furnished in writing by applicant as follows:
         ( X )   Additional issue(s) identified during review/hearing as follows:

Board Issue: (3) The characterization of service was too harsh.
         b. Request: ( X ) Recharacterization ( ) Change of Reason
2. Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on issues of propriety and/or equity:
         a. Propriety:    The parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

 (1) The issue is rejected. The Board noted the applicant’s contention that his discharge was improper because he was not given legal counsel or advised of his rights. However, contrary to the applicant’s contention, the evidence of record supports that his unit made several attempts by certified mail to notify him of his commander’s intent to initiate a separation board based on the applicant’s abuse of illegal drugs and missing drills. After three attempts at delivery, the certified letters returned unclaimed. The Board determined that command appropriately considered the applicant’s failure to respond as a waiver of his rights under the provisions of AR 135-178 and properly processed the applicant for discharge. See responses to issues (2) and (3) below.
         b. Equity:       The parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

 (3) The issue is accepted. The Board carefully examined the applicant’s record of service during the period of enlistment under review and heard his testimony. There was a full consideration of all service including the infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board determined that the characterization of service was inequitable. The Board found that the applicant's failure to perform in accordance with Army standards was mitigated by service of sufficient merit to warrant an upgrade of the discharge being reviewed. Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was proper and equitable and voted not to change it.

(2) The issue is rejected. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a non-commissioned officer (NCO). The applicant, as a NCO, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and this misconduct diminished the quality of service below that meriting a fully honorable discharge. See response to issue (3) above.

 3. Response(s) to item(s) not addressed as decisional issue(s): NONE
PART VII - BOARD ACTION
SECTION A - Conclusions/Decisions/Vote

1.       Board conclusion(s):

         The discharge was:

          ( X )    Proper.
         ( )      Improper as to characterization. Change characterization to                                      .
         ( )      Improper as to reason. Change reason to                         under                       .

         ( )      Equitable.
         ( X )    Inequitable as to characterization. Change characterization to General, Under Honorable Conditions .
         ( )      Inequitable as to reason. Change reason to                       
                  under                                  .
         ( )      Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to                      under                          .
2. Voting record: Change No Change
         Reason 0 5
Characterization 5 0

         The names and votes of the members of the Board are recorded in Part IX of this document and can be obtained by writing to the address below. The request must contain the CASE NO. located in the upper right corner of this document.

Department of the Army Review Boards Agency
ATTN: Promulgation Team
1941 Jefferson Davis Highway, 2nd Floor
Arlington, VA 22202-4508



3. Minority views: NONE

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       

                                 
MS. WADE
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 9 June 2000

The Army Discharge Review Board, established under the provisions of Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as Title 10, United States Code, Section 1553, in the case of the applicant named in Part I directs that the ARBA Support Division-St Louis issue a new DD Form 2l4 to the applicant which reflects the following directed change(s):

( X )   Change characterization of discharge to General, Under Honorable Conditions.
( X )   Other (see remarks below).
Remarks: This action includes a restoration of grade to sergeant/E-5.
SECTION B - CERTIFICATION

Approval Authority:


WILSON A. SHATZER
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




EARNEST C. SMITH, JR.
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge          C - Other
B - Material submitted by applicant

INDEX RECORD:

 AR Number: 2000039935 INDEX NUMBERS: A9218
Date of Review: 000605 A0100
Character of Service: UD
Date of Discharge: 980107
Authority: AR 135-178 C7
Reason: A6770
Results of Board Action/
Vote/Affirmation: GD 5-0 A





PART IX - VOTING RECORD



 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR

1.      Mbr      X      X       

2.      Mbr      X      X       

3.      Mbr      X      X       

4.      Mbr      X      X       

5.      PO      X      X       





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