Applicant Name:  ?????

Application Receipt Date: 2008/09/08	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The Applicant states:  "On 05 Oct 06 i was informed that i had tested positive for marijuana. From a Urinalysis that was conducted on 26 sep 06. On 06 Oct 06 I took a hair falical test at proresults in Austin, Tx. The results of that test came  back on 10 Oct 06. when the results of the test were prestented along with a chain of custody to my Batttery Commander and my Battalion Commander they were unwilling to acknowledge the drug test."

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: 061117
Discharge Received: 			   Date: 061221   Chapter: 14-12c(2)    AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: E Btry, 4-5 ADA Bn, Fort Bliss, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 061031, wrongful use of marijuana (060826-060926), reduction to E-1, forfeiture of $636 x 2, 45 days extra duty and restriction (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 050802    Current ENL Term: 3 Years  27 weeks
Current ENL Service: 	01 Yrs, 04Mos, 20Days ?????
Total Service:  		01 Yrs, 04Mos, 20Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 14S10/Avenger Crewmember   GT: 94   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  Visalia, 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 17 November 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct—for having tested positive for wrongful use of marijuana (060826-060926), with a general under honorable conditions discharge.  He was advised of his rights.  On 7 November 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf which is not contained in the record.  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 December 2006, 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 of this regulation 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 carefully examining the applicant’s record of service during the period of enlistment under review and the issue and documents submitted with the application, the analyst determined that the discharge was both proper and equitable.  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 service below that meriting a fully honorable discharge.  The analyst noted the applicant’s issue; however, the urinalysis retest must be conducted with the same urine sample that caused the first positive and in this case, it was not.  Army Regulation 600-85, Army Substance Abuse Program, paragraph 4-18, establishes that a Soldier whose urine has tested positive for illegal drugs may obtain a retest at a commercial laboratory, (National Institute for Drug Abuse approved), outside the DOD laboratory system at the individual’s expense when a sufficient quantity of the same specimen is available for retesting.  If the applicant wanted a retest at his own expense, he would have had to ask the Forensic Toxicology Drug Testing Laboratory to forward his original urine sample to a NIDA approved laboratory, however, he chose a different type of test which is not in accordance with the current policy.  Furthermore, the applicant was discharged under the provisions of Chapter 14, Paragraph 14-12c(2), AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)", and the separation code is "JKK."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  In view of the foregoing, the analyst determined 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: 10 June 2009         Location: Washington, D.C.

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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080015316
______________________________________________________________________________


Page 1 of 3 pages