Applicant Name:  ?????

Application Receipt Date: 2008/03/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant stated "I was a self referal to the A.S.A.P program.  After I self refered, my commander recommended me for an OTH.  I then attended the addministrative seperation board and was granted a general, under honorable conditions.  Since I was a self referal to the asap program, before the drug test was administered, I am protected under the "Limited use policy" which states "limited use prohibits the use of protective evidence against a Soilder on the issue of charicterization of service in the addministrative proceedings.  Additionally, the policy limits the characterization of discharge to honorable if protective evidence is used."

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: 071009
Discharge Received: 			   Date: 080117   Chapter: 14       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: B Co, 1-325th IN Bn (ABN), Fort Bragg, NC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 070719, failure to report x 3 (070516), (070622), and (070702), reduction to E-3, forfeiture of $416 x 1 and restriction (suspended) (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: 061027    Current ENL Term: 6 Years  ?????
Current ENL Service: 	01 Yrs, 02Mos, 21Days ?????
Total Service:  		02 Yrs, 08Mos, 01Days ?????
Previous Discharges: 	RA-050517-061026/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B1P Infantryman   GT: 108   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (060716-061209) and (070104-071231)
Decorations/Awards: AAM, NDSM, ICM, GWOTSM, ASR, OSR, CIB

V.  Post-Discharge Activity
City, State:  Bloomington, MN
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 2 August 2007, 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 failure to report x 3 (070516), (070622), and (070702) and failed to wear his seat belt while operating a vehicle, with a general, under honorable conditions discharge.  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 9 October 2007, the unit commander reinitiated notification proceedings based on the applicant's additional charges under the provisions of Chapter 14, AR 635-200, by reason of misconduct-commission of a serious offense for failure to report x 3 (070516), (070622), and (070702); failed to wear his seat belt while operating a vehicle; adulterated a urine sample (070821); and wrongfully used marijuana between (070806-070907), with an under other than honorable conditions discharge.  He was advised of his rights.  On 10 October 2007, again the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, 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 an under other than honorable conditions discharge.  On 7 November 2007, the applicant was notified to appear before an administrative separation board and advised of his rights.  However, the board scheduled for 7 November 2007 was withdrawn due to preexisting TDYs for both board's presidents.  On 7 December 2007, the applicant was renotified to appear before an administrative separation board and advised of his rights.  On 13 December 2007, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended that the applicant be discharged with issuance of a characterization of service of general, under honorable conditions.  On 27 December 2007, the separation authority approved the findings and recommendations of the board, waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.

       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, 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  issues and document he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable 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.  
       
       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 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 the DD Form 2624 dated 21 August 2007 coded IR, which indicates "Commander directed partial unit test," used for normal monthly random testing (i.e., 10% unit testing), was possibly adulterated.  On 23 August 2007, a memorandum from the laboratory certifying official notified the BIO Chemical Testing Lab, Fort Bragg, NC, that a specimen the applicant submitted (i.e., ID number FCO3-WABMHD-0001-20070821-007) appears to have been adulterated.  Further, the administrative separation board proceedings during testimony indicated that the unit commander stated after consultation with Division Legal, that he was advised that this was grounds for another test, which established the basis for probable cause to administer a second urinalysis test.  The evidence of record further shows that a DD Form 2624 dated 7 September 2007, indicated that the test was coded CO, and positive for marijuana.    In view of the aforementioned, the analyst determined that the code on the DD Form 2624 should have been coded PO which indicates " Probable Cause."  The commander directed the individual based on probable cause evidence.  The commander would have verified that probable cause existed 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.  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: 28 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 AR20080004313
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