Applicant Name:  ?????

Application Receipt Date: 2008/03/08	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: 060505
Discharge Received: 			   Date: 060518   Chapter: 14, Para 12c (2)      AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: C Company, 1/9th Infantry Regiment, Fort Carson, CO 80913 

Time Lost: AWOL x 1, for a total of 3 days from (060502-060504). The applicant reported to his company after returning from AWOL.

Article 15s (Charges/Dates/Punishment): 060515, AWOL (060502-060504), abandoned his guard post (060502), with intent to deceive, made a false statement to a SGT (060504), wrongfully used marijauna between on or about (051231-060131), incapacitated for the proper performance of his duties on or about (060324), forfeiture of $636.00 pay for 2 months, extra duty and restriction for 45 days, suspended, to be automatically remitted if not vacated before (060801) (FG)


Courts-Martial (Charges/Dates/Punishment): 060403, Summary Court-Martial-for wrongfully using marijuana on or about ( 051231-060131), the punishment imposed was: reduction to Private (E-1); confinement for 23 days.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: Reenl/050419    Current ENL Term: 5 Years  ?????
Current ENL Service: 	1 Yrs, 0 Mos, 26 Days ?????
Total Service:  		3 Yrs, 2 Mos, 27 Days ?????
Previous Discharges: 	RA 030219-050418/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 89   EDU: HS Grad   Overseas: Korea-(prior service), Southwest Asia   Combat: Iraq (040815-050719)
Decorations/Awards: NDSM, GWOTSM, KDSM, CIB

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 5 May 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 in that he tested positive for marijuana on (060320), with an under other than honorable conditions discharge.  He was advised of his rights.  The applicant declined the opportunity to consult with legal counsel, was advised of the impact of the discharge action, unconditionally waived 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 commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 16 May 2006, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than 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, 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, and the issue 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.  Furthermore, the analyst noted the applicant's issue that he was using marijuana to help his Post Traumatic Stress Disorder; however, the record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that his discharge was the result of any medical condition.  Further, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  In view of the foregoing, 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: 17 December 2008         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 characterization of service was too harsh, and as a result it is inequitable.  While the Board does not condone the applicant's misconduct, it determined that the overall length and quality of the applicant's service, to include his combat service mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined that the reason for discharge was fully supported by the record and voted not to change it.   
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
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 AR20080005177
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