Application Receipt Date: 060523	

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached documents.

II.  Were Proper Discharge and Separation Authority procedures followed?  
Yes    No        Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: 050322
Discharge Received:     Date: 050831   
Chapter: 14    AR: 635-200
Reason: Misconduct, Commission Of A Serious Offense
RE:     SPD: JKQ
Unit/Location: Rear Detachment Battery 1st Bn 41st FA Fort Stewart, GA 31314 

Time Lost: None

Article 15s (Charges/Dates/Punishment): Unit Commander's recommendation memorandum indicates the following; 050331-wrongfully use cocaine, between on or about (041112) and (041115), (Field Grade).  Article 15 NIF.

Court-Martials (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  710325  
Current ENL Date: 020327    Current ENL Term: Indef Years  ?????
Current ENL Service: 03 Yrs, 05 Mos, 04 Days ?????
Total Service:  14 Yrs, 06 Mos, 05 Days ?????
Previous Discharges: RA-910226-940822/HD
                                      RA-940823-980318/HD
                                      RA-980319-000319/HD
                                             RA-000320-020326/HD
Highest Grade: E6
Performance Ratings Available: Yes    No 
MOS: 63B20 Light Wheel Vehicle Mechanic/63J20 QM and Chemical Equip Repairer   GT: 108   EDU: GED   Overseas: Korea/Germany   Combat: None
Decorations/Awards: ARCOM (3), AAM (4), AGCM (4), NDSM (2), GWOTSM, KDSM, ASR, OSR (3), COT (13), C/Ach (10), LOA (2) 
V.  Post-Discharge Activity
Home of Record: 
Post Service Accomplishments: The applicant states he is a defense contractor with Halliburton in Iraq. 

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      Evidence of record shows that on 22 March 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct—commission of a serious offense (on 15 November 2004, he tested positive for cocaine), with a general, under 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 and appearance 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. The senior intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 8 July 2005, the administrative separation board met, applicant appeared with counsel.  The board found that the allegation in the notification memo was supported by the preponderance of evidence and does warrant separation.  The applicant is not desireable for further retention in the United States Army and, the Board recommended that the applicant be separated from active service with an under other than honorable conditions discharge.  The Board further stated that he was a deserving Soldier whose separation should not be ended without being given a probationary period not to exceed six months to show successful rehabilitation before his enlistment expires.  The applicant's separation was initiated using the notification procedure and the least favorable characterization of service he could receive was a general, under honorable conditions discharge.  The administrative separation board was erroneously advised by legal counsel that the least favorable characterization of service the applicant could receive was an other than honorable conditions discharge.  0n 4 August 2005, the Staff Judge Advocate conducted a legal review and advised the separation authority that the least favorable characterization of service he could receive was a general, under honorable conditions discharge.  On 4 August 2005, the separation authority approved the Staff Judge Advocate's recommendation, waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. 
       
      The applicant had a CID Agent's investigative report dated 16 December 2004.

      b.  Legal Basis for Separation:  
      Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, but a general discharge 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 he submitted, the analyst  recommend that the applicant’s characterization of service be upgraded to fully honorable.  This recommendation was made after full consideration of his faithful and honorable service, as well as his record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service was too harsh, and as a result it is now inequitable.  While the applicant's misconduct is not condoned, the analyst found that the overall length and quality of the applicant's service, and his post service accomplishments mitigated the discrediting entry in his service record.  Furthermore, the analyst found that the narrative reason for discharge was inequitable.  Regulations currently in effect list the reason for the applicant’s discharge as misconduct.  Accordingly, the analyst recommend to the Board to change the narrative reason on the DD Form 214 to "Misconduct."  However, the analyst determined that the reason for discharge was both proper and equitable.  
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 4 April 2007              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA




VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Equitable	 	Inequitable	

DRB voting record:  		      	Change     No change    (Character)
		 			       	Change     No change    (Reason)
					      (Board member names available upon request)

IX.  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 was too harsh, and as a result it is now inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to fully honorable.  Furthermore, the Board found that the narrative reason for discharge was inequitable.  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."   However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it. 















Case report reviewed and verified by: Mr. Kenneth McFarley, Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: Current Standards "Misconduct" under provision of Chapter 14, 635-200. 
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: None

XI.  Certification Signature and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


MARY E. SHAW				DATE: 12 April 2004
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060007413

Applicant Name:  Mr.       
______________________________________________________________________


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