Applicant Name:  ?????

Application Receipt Date: 208/06/19	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: 040722
Discharge Received: 			   Date: 040803   Chapter: 14       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: HHC, 2-81 AR Regmt, Fort Knox, KY 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 040630, wrongful use of marijuana between (040424-040525), reduction to E-4, and extra duty for 30 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  36
Current ENL Date: 030926    Current ENL Term: 3 Years  ?????
Current ENL Service: 	00 Yrs, 10Mos, 08Days ?????
Total Service:  		14 Yrs, 00Mos, 22Days ?????
Previous Discharges: 	ARNG-850630-851105/NA
                                       ADT-851106-860221/HD
                                       ARNG-860222-880629/HD
                                       USARCG-880630-930629NA
                                            (Break In Service)
                                       RA-990520-010612/HD
                                       RA-010613-030628/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 19K1H M1 Armor Crewman/11B10 Infantryman   GT: 107   EDU: GED Cert   Overseas: None   Combat: None
Decorations/Awards: AAM, AGCM, NDSM, GWOTSM, NCOPDR, ASR

V.  Post-Discharge Activity
City, State:  Colorado Springs, CO
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 22 July 2004, 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 submitting a urine sample which tested positive for marijuna (040525), with a general, under honorable conditions discharge.  He was advised of his rights.  The applicant consulted with 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 28 July 2004, the separation authority 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, 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 issues he submitted, the analyst determined that the discharge is improper.  The evidence of record shows that the applicant consulted with legal counsel and was advised that he was not eligible to have his case considered by an administrative separation board.  However, the applicant had over 6 years of total active and reserve military service at the time of initiation of the separation action.  The analyst noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board and did not waive it.  The analyst determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  Accordingly, the analyst recommends to grant relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  This action does not entail a change to reenlistment eligibility (RE) code, however the Board can consider it.
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 1 April 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 is improper. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  This action entails a change to the reentry eligibility (RE) code to "3."








        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 5    No change 0
(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: Secretarial Authority under the provisions of Chapter 5, AR 635-200.
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080009856
______________________________________________________________________________


Page 1 of 3 pages