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ARMY | DRB | CY2003 | 2003087744
Original file (2003087744.rtf) Auto-classification: Denied
PART II - APPLICATION DATA

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

1. Character of Discharge: General, Under Honorable Conditions

2. Date of discharge (or REFRAD): 020501

3. Authority for separation:

         a. Regulation: Chapter 7, AR 135-178

          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:
                            AAM
a. Period entered for: 8 Years GCMDL
b. Entry date: 970529 AOM
c. Age: 39 Years DOB: 580404 NCOPDR (1)
d. Educational level: HS Grad ASR
e. Aptitude area score: OSR
          GT: 114 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: The applicant has a Bar to Reenlistment Certificate dated (011218) in file.


SECTION B - Prior Service Data


Other discharge(s):

          Service   From      To        Type Discharge
         RA       780314   811207   Honorable
         RA       811208   850507   Honorable
         USARCG   850508   880507   Honorable



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 19 December 2001, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, AR 135-178, by reason of misconduct—abuse of illegal drugs, 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, 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 commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. On 28 March 2002, the Staff Judge Advocate stated that the separation action was administratively and legally sufficient. On 28 March 2002, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.

         b. On 1 May 2002, the applicant was discharged from the US Army Reserve. At the time of discharge, the applicant had completed 4 years, 11 months, and 2 days of active military service in the period under review and had a total of 15 years, and 25 days of active military service.

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, paragraph 7-11.c.1 of the regulation, in effect at the time, governed separation for misconduct-abuse of illegal drugs. When discharged under this provision, Army policy states that the characterization of service will normally be under other than honorable conditions. The regulation also permitted the characterization of service as under honorable conditions, but did not authorize the characterization of service as honorable.



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 030312, with thirteen (13) 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:
         ( X )Records review ( ) Hearing
         ( ) Tender Offer

         c. Review/hearing location and date: Tampa, Florida on 16 September 2003 .

         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:
         ( )     Additional issue(s) identified during review/hearing as follows:
         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.
 Applicant’s Issues

(1), (2), (4), and (5) The issues are rejected. The Board carefully examined the available records of service for the period of enlistment under review. The Board noted that the separation documentation is incomplete. The applicant submitted an incomplete separation packet with his application and the documentation is also absent in the official record. The Board was unable to ascertain from the documentation available whether the applicant was denied a personal appearance before an administrative separation board prior to his separation. Absent the probative evidence regarding this issue, the Board was compelled to presume regularity in the discharge process at this time, and voted to deny relief. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.
(3) The issue is rejected. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a soldier. The applicant, as a noncommissioned officer, 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 diminished the quality of service below that meriting a fully honorable discharge.

Counsel’s Issues :

(6-9) The issues are rejected. See response to issues, above.

         b. Equity:       The applicant has not submitted an issue of equity and the ADRB has not otherwise relied upon an issue of equity to change the discharge. The major factors upon which the discharge was based are set forth in Parts III and IV of this decisional document.
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                       .

         ( X )    Equitable.
         ( )      Inequitable as to characterization. Change characterization to                                .
         ( )      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 0 5

         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. McKim-Spilker
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
NONE
SECTION B - CERTIFICATION

Approval Authority:


SPURGEON A. MOORE
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




JOHN F. LONG
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: 2003087744 INDEX NUMBERS: A0141
Date of Review: 030916 A0143
Character of Service: GD A9217
Date of Discharge: 020501
Authority: AR 135-178 C7
Reason: A6770
Results of Board Action/
Vote/Affirmation: NC 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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