Applicant Name:  ?????

Application Receipt Date: 2008/07/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he is currently a student who is in need of help, that his GI Bill can provide. The applicant submitted an additional statement with twenty-two (22) enclosures.

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: 040202
Discharge Received: 			   Date: 040227   Chapter: 14       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: E Company, 3rd US Infantry (The Old Guard), Fort Myer, VA 22211. 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): 031106, Summary Court-Martial-for wrongfully using marijuana between (030612-030711), and with intent to deceive, made an official statement, which was false (030806), forfeiture of 2/3rd pay for one month, and reduction to E-3.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 010622    Current ENL Term: 4 Years  ?????
Current ENL Service: 	2 Yrs, 8 Mos, 6 Days ?????
Total Service:  		2 Yrs, 8 Mos, 6 Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B1P Infantryman   GT: 113   EDU: 14 Years   Overseas: None   Combat: None
Decorations/Awards: AAM, NDSM, ASR

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 2 February 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 in that you have on numerous occasions failed to report and wrongfully used marijuana, 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 11 February 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.  
       
       The record contains a CID Report of Investigation dated 15 August 2003. 
       
       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 applicant has a CID Report of Investigation which established probable cause to believe that the applicant committed the offense of wrongful use of marijuana when he rendered a positive urine sample during a command directed urinalysis.  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 PO which indicates " Probable Cause: The commander Directed the individual based on probable cause evidence.  The commander should verify that probable cause exists 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.  

       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, the issue and additional documents 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; however, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  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 November 2008         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: The American Legion
                 Attn: 
                1608 K Street, NW
                Washington, DC 20006

Witnesses/Observers: None 

Exhibits Submitted: None

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and considering the analyst’s recommendation and rationale, and the supporting statement from the applicant's counsel, the Board determined that the applicant's 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
								         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 AR20080010961
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