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ARMY | DRB | CY2000 | 2000042615
Original file (2000042615.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): 930518

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

          b. Reason: Misconduct-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:
                            NDSM
a. Period entered for: 3 Years ASR
b. Entry date: 911003
c. Age: 22 Years DOB: 681029
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 118 3. Highest grade achieved:
f. Length of Service: E3
1 Year(s) 7 Month(s) 16 Day(s)

4. Performance evaluations:
NONE

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:

         Date     Offense(s)
         920624 Wrongfully used marijuana, between (920404 and 920504)
         930305 Wrongfully used marijuana, between (921205 and 930105)

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
         ARNGUS 851231 900205 GD
         ARNG 870626 870813 HD
         (concurrent svc)



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 5 April 1993, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct—abuse of illegal drugs, with an under other than honorable conditions discharge. The applicant acknowledged notification, consulted with legal counsel, and was advised of the impact of the discharge action. The applicant did not submit statements in his own behalf and waived consideration of his case by a board of officers. The Army Drug and Alcohol Prevention Control Program counselor submitted a statement in the applicant’s behalf. The unit commander subsequently recommended separation with an under other than honorable conditions discharge. The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 22 April 1993, Staff Judge Advocate recommended separation with an under other than honorable conditions discharge. On 26 April 1993, the separation authority directed that the applicant be discharged with an under other than honorable conditions discharge.

         b. On 18 May 1993, the applicant was discharged. At the time of discharge, the applicant had 1 year, 7 months, and 16 days service on his current enlistment.

         c. The unit commander recommended the applicant be separated from the Army because he tested positive for marijuana on three separate occasions.

2. Legal/Regulatory Basis for Separation Action : Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter l4 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, 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.
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 000415, with two (2) 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:
         ( X ) Records review ( ) Hearing

         b. Type Held:
         ( X )Records review ( ) Hearing
         ( ) Tender Offer

         c. Review/hearing location and date: Washington, DC on 28 June 2000 .

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

          e. Applicant testified: ( ) Yes ( X ) No
        
         f. Counsel presentation: ( ) Yes ( X ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing:

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 Issues: (8) The characterization of service was too harsh.
(9) The narrative reason for separation is inequitable.

         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 found no evidence indicating that command used limited use evidence in the discharge process. The evidence of record shows that the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) when he participated in a unit urinalysis test which came back positive for marijuana. The unit urinalysis test was not given in conjunction with the applicant’s participation in ADAPCP. The Board determined that use of said results did not violate the policies on limited use evidence.

(2) The issue is rejected. The applicant’s contention is not supported by either the evidence submitted with the application or the evidence of record. The Board determined that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The evidence of record shows that having been advised of his rights by legal counsel, the applicant indicated that he understood the ramifications of the discharge action, declined the opportunity to submit statements in his own behalf, and waived his right to a hearing before a board of officers.
         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.

 (8) The issue is accepted. There was a full consideration of all service including the infractions of discipline, the extent thereof, and the seriousness of the offenses. Notwithstanding the applicant’s misconduct, the Board determined that the characterization of service was inequitable. The applicant's misconduct was mitigated by service of sufficient merit to warrant an upgrade of the discharge being reviewed. However, the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable characterization of service. Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to general, under honorable conditions.

(9) The issue is accepted. Regulations currently in effect list the reason for the applicant’s discharge as misconduct. Accordingly, the Board voted to change the narrative reason on the DD Form 214 to misconduct.

(3-7) The issues are rejected. See responses to issues (8) and (9) 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 .
         ( X )    Inequitable as to reason. Change reason to Misconduct
                  under Chapter 14, AR 635-200 .
         ( )      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 5 0
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: 30 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 does not entail a restoration of grade.
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: 2000042615 INDEX NUMBERS: A9218
Date of Review: 000628 A9442
Character of Service: UD A9411
Date of Discharge: 930518 A9401
Authority: AR 635-200 C14 A9455
Reason: A6770 A0101
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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