Applicant Name:  ?????

Application Receipt Date: 2008/09/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 149 and supporting documents 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: 060929
Discharge Received: 			   Date: 071031   Chapter: 14-12c(2)    AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: Puerto Rico ARNG Recruiting and Retention Cmd, Joint Force HQ, San Juan, PR 

Time Lost: None

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: 011203    Current ENL Term: 4 years  Years  Extended for 6 additional years
Current ENL Service: 	05 Yrs, 10Mos, 28Days ?????
Total Service:  		13 Yrs, 07Mos, 13Days ?????
Previous Discharges: 	RA 940412-970311/HD
                                       RA 970312-010311/HD
Highest Grade: E-7		Performance Ratings Available: Yes    No 
MOS: 79T40/Recruiting and Retention NCO   GT: 96   EDU: HS Degree   Overseas: None   Combat: None
Decorations/Awards: ARCOM, AAM, AGCM-2, NDSM-2, GWOTSM, ASR, NCOPDR-2

V.  Post-Discharge Activity
City, State:  Caguas, PR
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The facts and circumstances pertaining to the applicant’s discharge from the Army are not contained in the available official records.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 12c(2) by reason of misconduct (drug abuse), with a characterization of service of general, under honorable conditions.  Furthermore, the DD Form 214 shows a Separation Code of JKK and a Narrative Reason for Separation as "Misconduct (Drug Abuse)."  Furthermore, the record shows that Orders 286-205, PR NG Element, JTF HQ, San Juan PR, dated 13 October 2007, discharged the applicant from the ARNG effective 31 October 2007, with an honorable discharge. 
        

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states that an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldier’s service is so meritorious that any other characterization would be inappropriate.  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:  
       The analyst noted that although the OMPF does not contain the separation packet, the applicant provided documentation that indicates that on 29 September 2006, the unit commander notified him that he was initiating separation action for misconduct-illegal use of drugs, as a result of a urinalysis which was positive for cocaine and suspended the action to allow him time to consult with legal counsel and advised him of his rights.  The applicant acknowledged receipt of this correspondence and signed the document.  A second notification for separation action was served to the applicant on 5 May 2007 for a positive urinalysis for cocaine.  His supporting documents indicate that on 9 May 2007, he consulted with counsel and requested an administrative separation board.  The documents that would show the approval by the separation action were not contained in the official record and the applicant did not provide them with his application.  After a careful review of all the applicant’s military records, and issues and documents submitted with the application, the analyst determined that the applicant’s available record of service during the period of enlistment under review is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  However, the applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).  This document identifies the reason and characterization of the discharge and the analyst presumed Government regularity in the discharge process.  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 12c by reason of misconduct (drug abuse), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as a NCO, 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 his misconduct diminished the quality of service below that meriting a fully honorable discharge.  Furthermore, the analyst noted the applicant’s issues, however AR 635-200, paragraph a (applicability), indicates that this regulation applies to all enlisted soldiers serving on active duty in the Active Army, including Army National Guard soldiers serving on active duty under Title 10 of the United States Code, which includes active duty for training, full-time active duty in the Active Guard Reserve Program, active duty for special work, temporary tours of active duty, and order-to-active-duty for contingency operations, and the applicant was in AGR status under Title X at the time.  Additionally, the narrative reason for separation is governed by specific directives.  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"  and a corresponding reentry code (RE) of 4.  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.  Finally, the additional corrections that the applicant requests to be made to his DD Form 214, do not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding this matter.  An application for that Board is enclosed.  In view of the foregoing, the analyst determined that the narrative reason for discharge was both proper and equitable and recommends to the Board to deny relief.   
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 23 February 2009         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: Leave and Earning Statement
                                   Memorandum from JAG
                                   Orders 262-505

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, the Board determined that the discharge is now inequitable.  The Board found that the overall length and quality of the applicant's service, and the circumstances surrounding his service status, notification procedures, and irregularities in the separation process, mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant full 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.  Additionally, the Board voted to change to the reentry eligibility (RE) code to "1."  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 3    No change 2
(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 Provision of Chapter 5, AR 635-200, with a corresponding SPD Code of "JFF" (Involuntary Discharge.
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080016615
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