Applicant Name:  ?????

Application Receipt Date: 2008/03/10	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 submitted by the applicant.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 001024
Discharge Received: 			   Date: 001116   Chapter: 14       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: K Co, 4-159 AV Regt, Hunter AAF, GA  

Time Lost: AWOL for 1 day (991002-991003), mode of return unknown. 

Article 15s (Charges/Dates/Punishment): 000831, wrongfully used cocaine between (000607-000706), and wrongfully used marijuana between (000607-000706), forfeiture of $645 x 2, extra duty for 45 days (FG).

The applicant mentions is his Article 15 appeal letter that he received an Article 15 from his prior unit, however, that Article 15 is not part of the available record.

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 990503    Current ENL Term: 6 Years  ?????
Current ENL Service: 	01 Yrs, 06Mos, 12Days ?????
Total Service:  		01 Yrs, 06Mos, 12Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 35R10 Avionics Spec Equip Repairer   GT: 113   EDU: 13 Years   Overseas: None    Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  Fort Worth, TX
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 23 October 2000, 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 for wrongful use of marijuana and 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, and submitted 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 2 November 2000, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. 
       
       The analyst noted that the DD Form 2624 (Speciment Custody Document-Drug Testing) found in the applicant's available records shows that the test was coded CD which indicates "Competence for Duty/Command Direct/Fitness for duty. The commander directs an individual test for fitness for duty.  The commander has a suspicion that a Soldier is using a controlled substance, but does not have probable cause.  The Limited Use Policy applies to this test basis, per AR 600-85.  However, the evidence of record shows that a memorandum for record dated 24 August 1999, with the subject matter: Command Directed Urinalysis Testing, due to the applicant being found somewhat incoherent, with dilated eyes, and was groggy.  The unit commander decided that the behavior and the characteristics could be a possible side effect from the use of an illicit substance,  which established probable cause to believe that the applicant committed the offense of wrongful use of marijuana and cocaine when he rendered a positive urine sample during a command directed urinalysis.  In view of the aforementioned, the analyst determined that the code on the DD Form 2624 was in all likelihood incorrect and should have been coded PO which indicates Probable Cause: The commander directed the individual based on probable cause evidence.  The commander should verify that probable cause exists with the local Staff Judge Advocate (SJA) prior to ordering this test per AR 600-85.  As further evidence that the test was improperly coded, the applicant consulted with defense counsel in conjunction with his administrative discharge under the provisions of Chapter 14, AR 635-200 for various misconduct, and defense counsel did not raise the issue as to characterization.  The analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  Furthermore, the evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.
       

       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, and the issues he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  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 Soldier, 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 his service below that meriting a fully honorable discharge.  Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 7 January 2009         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA


VIII.  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 discharge was both proper and equitable and voted to deny relief.  

  
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080003812
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