Applicant Name:  ?????

Application Receipt Date: 080314	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: 010808
Discharge Received: 			   Date: 020214   Chapter: 14       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: HHC, 2/227th AVN, Fort Hood, TX 

Time Lost: AWOL for 6 days (010426-010501), surrendered.  The applicant's DD Form 214 under review makes reference to a second period of time lost ( 020103-020214), however, documents to support this period of time lost was not found in the available records.

Article 15s (Charges/Dates/Punishment): 010601, Wrongful use of marijuana between (010403 and 010502) and AWOL (010426 to 010502), reduction to E2, and 45 days extra duty, (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 000403    Current ENL Term: 03 Years  ?????
Current ENL Service: 	01 Yrs, 08Mos, 23Days ?????
Total Service:  		01 Yrs, 08Mos, 23Days ?????
Previous Discharges: 	None
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 77F10/Petroleum Supply Specialist   GT: 90   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  San Antonio, TX
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 20 July 2001, 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 receiving a Field Grade Article 15 (010601) for wrongful use of marijuana and absenting himself from his unit, with an under other than honorable conditions discharge.  He was advised of his rights.  On 20 July 2001, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily 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 commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 8 August 2001, the unit commander again 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 receiving a Field Grade Article 15 (010601) for wrongful use of marijuana and absenting himself from his unit, with additionally charges for making a statement, admitting to using marijuana about 10 times while in the Army (010530), for being counseled for failing to report to formation (010614), for being counseled 010628 for going AWOL (010623), and for being counseled for failing to report to work (010705 and 010725), with an under other than honorable conditions discharge.  On 18 September 2001, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily 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 commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 3 December 2001, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 7 December 2001, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended that the applicant be discharged with issuance of a character of service of under other than honorable conditions.  On 6 February 2002, the separation authority approved the recommendation of the administrative separation board and directed that the applicant be discharged with a characterization of service of under other than 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 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 the applicant was AWOL during the period (010426 to 010502), which was substantiated by the DA Form 2627 (Record Proceedings Under Article 15) dated (010601).  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 IO which indicates Inspection Other "Inspections based on command/unit policy, used to test individuals based on a commander's policy letter or SOP (ie individuals after 30 days leave, newly arrived personnel, or re-tests of rejected previously collected specimens)."  This would also include individuals returning from AWOL.  The record does not contain the commander's policy letter or SOP; however, it is the common practice for units to have such a policy.  As further evidence that the test was improperly coded, the applicant consulted with defense counsel in conjunction with his chapter 14, 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 issue 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 general, under honorable conditions discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  Furthermore, the analyst noted the applicant's issues, however, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  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: 4 February 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 AR20080004065
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