Applicant Name: ?????
Application Receipt Date: 2008/04/23 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: 070416
Discharge Received: Date: 070802 Chapter: 14 AR: 635-200
Reason: Misconduct (Drug Abuse) RE: SPD: JKK Unit/Location: A Co, 10th CSH, Fort Carson, CO
Time Lost: None
Article 15s (Charges/Dates/Punishment): 070314, wrongful use of cocaine between (070213-070215), reduction to E-1, forfeiture of $650 x 2, extra duty for 45 days and restriction for 45 days (FG).
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 25
Current ENL Date: 040318 Current ENL Term: 4 Years ?????
Current ENL Service: 03 Yrs, 04Mos, 15Days ?????
Total Service: 05 Yrs, 04Mos, 19Days ?????
Previous Discharges: RA-020314-040317/HD
Highest Grade: E-4 Performance Ratings Available: Yes No
MOS: 68M10 Nutrition Care Spec GT: 97 EDU: GED Cert Overseas: Southwest Asia Combat: Iraq (030101-030715) and Iraq (051012-061015)
Decorations/Awards: AAM-2 (1 Prior Service), AGCM, NDSM, ICM, GWOTEM, GWOTSM, ASR, OSR
V. Post-Discharge Activity
City, State: Modesto, CA
Post Service Accomplishments: None Listed
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 16 April 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 testing positive for cocaine x 2 (070321) and (070215), with an under other than honorable conditions discharge. He was advised of his rights. 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 did not submit a statement in his own behalf. On 24 April 2007, again the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions, 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 senior intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 4 May 2007, the separation approving authority disapproved the applicant's conditional wavier of his right to have his case considered by an administrative separation board. On 11 May 2007, the applicant was notified to appear before an administrative separation board and advised of his rights. On 8 June 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 under other than honorable conditions. On 13 July 2007, 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.
The applicant's record contains a CID Report of Investigation dated 14 March 2007.
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 applicants 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 general, under honorable conditions or a fully honorable discharge. Furthermore, the analyst noted the applicant's issue and determined that 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. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. 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: 11 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 applicants record of service during the period of enlistment under review and considering the analysts recommendation and rationale, the Board determined that the characterization of service is too harsh, and as a result it is inequitable. The Board determined that the overall length and quality of the applicants service, to include his combat service (two combat tours), 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 both proper and equitable and voted not
to change it.
IX. Board Decision
XI. Certification Signature
Board Vote: Approval Authority:
Character - Change 4 No change 1
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 AR20080006315
______________________________________________________________________________
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