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):  030910

3.  Authority for separation:

      a.  Regulation:  Chapter 14, AR 635-200

      b.  Reason:  Misconduct

4.  Prior review(s):  NONE



                         PART III - SERVICE HISTORY

                 SECTION A - Period of Service Under Review

1.    Service data:                              2.  Awards and
    decorations:
                                           ARCOM (4)   ASR
    a.  Period entered for:  3 Years               AAM (2)     ARCOTR (4)
    b.  Entry date:  010122                        GCMDL
    c.  Age:  35 Years   DOB:  671112              NDSM (2)
    d.  Educational level:  HS Grad                NCOPDR
    e.  Aptitude area score:
          GT:  112                               3.  Highest grade
achieved:
    f.  Length of Service:                         E5
          2 Years  7 Months  19 Days

                                               4.  Performance evaluations:

                                                   See OMPF (fiche)

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

5.  Periods of unauthorized absence:

    Status       Inclusive dates
      AWOL         030113-030115

      Mil conf

      Civil conf

      Other


6.  Nonjudicial punishment:

      Date  Offense(s)
      030506     Wrongfully used cocaine (between 030316 and 030416)(Field
             Grade)


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
      USAR  850401     850626     NA
      ADT   850627     850831     Uncharacterized
      USAR  850901     860612     NA
      ADT   860613     860906     Uncharacterized
      USAR  860907     910309     Honorable
      USAR  910310     930911     Honorable
      ARNGUS     930912      940601     Honorable




                         PART IV - PREHEARING REVIEW

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

      a.  Evidence of record shows that on 10 June 2003, the unit commander
notified the applicant of initiation of separation action under the
provisions of Chapter l4, AR 635-200, by reason of misconduct—commission of
a serious offense, with a general, under honorable conditions discharge.
The reason for the proposed action was the applicant received a Field Grade
Article 15 for unlawful use of a controlled substance (cocaine).  He was
advised of his rights.  On 10 June 2003, the applicant consulted with legal
counsel, was advised of the impact of the discharge action, and did not
submit a statement in his own behalf.  He was also entitled to have his
case heard before an administrative separation board.  However, he waived
his right to a board contingent upon receiving an honorable discharge.  The
unit commander subsequently recommended separation from the service and
waiver of further rehabilitative efforts.  On 19 June 2003, the
intermediate commander reviewed the proposed discharge action and
recommended approval of the separation action with a general discharge.  On
20 June 2003, the applicant, again under legal advice, submitted another
request for conditional waiver.  This time, he waived his right to a board
contingent upon receiving a characterization of service no les favorable
than a general, under honorable conditions.  On 2 July 2003, the separation
authority waived further rehabilitative efforts and directed that the
applicant be discharged with a characterization of service of general,
under honorable conditions.

        On 11 July 2003, the proper medical authorities examined the
applicant and diagnosed him with chronic right shoulder pain.  The medical
authorities determined that he did not meet the physical standards for
retention.  As a result the Medical Evaluation Board (MEB) recommended that
his case be referred to the Physical Evaluation Board (PEB) for
disposition.  On 29 July 2003, the applicant was issued a permanent
physical profile for right shoulder pain.  On 6 August 2003, the MEB
referred the case to the PEB.  On 26 August 2003, the proper legal
authority reviewed the applicant’s case.  AR 635-200, paragraph 14-17g
states that when a separation action and Physical Evaluation Board are
concurrently initiated, the separation authority will process the soldier
through medical channels rather than administrative channels if the
incapacitating physical illness was a direct or substantial contributing
cause of the misconduct.  The legal authority opined that the applicant’s
shoulder pain was not the direct or substantial contributing cause of the
applicant’s cocaine use and therefore, separation under Chapter 14 was the
proper means to effect his separation from service.  On 28 August 2003, the
GCMCA directed that the applicant would be processed for separation
pursuant to AR 635-200, paragraph 14-12c, and not through medical channels.


      b.  On 10 September 2003, the applicant was discharged.  At the time
of discharge, the applicant had completed 2 years, 7 months, and 19 days of
active military service in the period under review and had a total of 15
years, 1 month, and 8 days of total military service.

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 040602, with no enclosures.
      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 2 February
2005.

      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 Issue:  (2)  The discharge is improper.

      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.

        (2)  The issue is accepted.  The Board carefully examined the
applicant’s record of service during the period of enlistment under review.
 The Board noted that the unit commander used “Board Procedures” when
notifying the applicant that he was initiating action to separate him under
the provisions of Chapter 14, AR 635-200, by reason of misconduct.  By
using “Board Procedures” the authority for approval of the applicant’s
separation rested with the General Court-Martial Convening Authority.  The
evidence of record shows that applicant’s separation action was improperly
approved at the Special Court-Martial Convening Authority level.  In view
of the foregoing, the Board determined that the discharge was improper.
Accordingly, the Board voted to grant full relief in the form of an upgrade
of characterization of service to fully honorable and a change to the
narrative reason for separation to Secretarial Authority.  This action does
not entail a change to the reentry eligibility (RE) code.

      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.

        (1)  See Paragraph 3, below.

3.  Response(s) to item(s) not addressed as decisional issue(s):

    Inasmuch as the Board voted to grant the full relief requested,
response to the remaining issue is neither required nor rendered.  Further,
eligibility for veteran's benefits to include educational benefits under
the Montgomery GI Bill does not fall within the purview of this Board.
Accordingly, the applicant should contact a local office of the Department
of Veterans Affairs for further assistance.

                           PART VII - BOARD ACTION
                   SECTION A - Conclusions/Decisions/Vote

1.    Board conclusion(s):

      The discharge was:

      (   ) Proper.
      ( X ) Improper as to characterization.  Change characterization to
           Honorable.
      ( X ) Improper as to reason.  Change reason to Secretarial Authority
           under Chapter 5, AR 635-200.

      (   ) 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       3         2
    Characterization       4         1

        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
                  1901 South Bell Street, 2nd Floor
                  Arlington, VA  22202-4508



3.  Minority views:  NONE
                           PART VII - BOARD ACTION
                 SECTION B - Verification and Authentication

Case report reviewed and verified

                          
MR. RIVERA
Case Reviewing Official

                     PART VIII - DIRECTIVE/CERTIFICATION
                            SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis      Date:  4 February 2005

     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
                  Honorable.
           ( X ) Change reason and authority for discharge to
            Secretarial Authority, AR 635-200.
           ( X ) Other (see remarks below).

Remarks:  This action does not entail a change to the RE code.

                          SECTION B - CERTIFICATION

Approval Authority:


ROBERT L. HOUSE
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:




MARY E. SHAW
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:  20040002601                   INDEX NUMBERS:  A0108
Date of Review:  050202                                   A0154
Character of Service:  GD                                 A1200
Date of Discharge:  030910
Authority:  AR 635-200 C14
Reason:  A6770
Results of Board Action/
Vote/Affirmation:  HD 4-1 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