Applicant Name:  ?????

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

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant submitted no issues of equity or propriety to be considered by the Board.

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: 061013
Discharge Received: 			   Date: 061026   Chapter: 14       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: HHB, 5/82d FA, 4 BCT, 1st Cav Div, Fort Bliss, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 061019, Wrongful use of cocaine and heroin between (060910 and 060913) and wrongful use of heroin between (061001 and 061004), reduction to E4, (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 050913    Current ENL Term: 03 Years  ?????
Current ENL Service: 	01 Yrs, 01Mos, 14Days ?????
Total Service:  		03 Yrs, 11Mos, 21Days ?????
Previous Discharges: 	RA-021106-050912/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 13B10/Cannon Crewmember   GT: 109   EDU: HS Grad   Overseas: Germany, Southwest Asia    Combat: Iraq (040208-050308)
Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWOTSM, ICM, NCOPDR, ASR, OSR

V.  Post-Discharge Activity
City, State:  Pittsburgh, PA
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 13 October 2006, 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 cocaine, with a general, under honorable conditions discharge.  He was advised of his rights.  The applicant waived legal counsel, was advised of the impact of the discharge action, 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 13 October 2006, 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 (Specimen Custody Document-Drug Testing) found in the applicant's available records shows that the test was coded CO 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 dated 13 September 2006, which established probable cause for the unit commander to request that a urinalysis be conducted on the applicant based on information received from Fort Bliss CID-Narcotics Division.  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.  It states that an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldier’s service is so meritorious that any other characterization would be inappropriate.  Chapter 14 of this regulation 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, however, a general 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 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 special trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as a NCO, 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 the misconduct diminished the quality of service below that meriting a fully honorable discharge.  In view of the foregoing, the analyst determined 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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080003821
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