Applicant Name:  ?????

Application Receipt Date: 2009/03/06	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 and documents submitted by the Applicant. The applicant states "My discharge was inequitable because it was based on one isolated incident during my 4 year  10 months and 13 day military career.  I was discharged from the military because I tested positive for THC. Two days before I was about to deploy to Iraq, I was ordered to go to the infectious disease clinic, where I was told that I would not be deploying. I then was informed that I was HIV positive.  In which this can be verified through my Service medical record and my VA medical record. VA is my primary care provider in dealing with this fatal disease. In the midst of finding out that I have a fatal disease, wondering whether or not I was going to live or die, how long I was going to live, a terrible mistake was made, marijuiana use. My chain of commad as well as my whole company were deployed to Iraq one day later. I honestly feel if my chain of command had been involved or did not deploy, the outcome of the situation would have been different.  There was no rehabilitation or consideration, just a discharge".

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: 050707
Discharge Received: 			   Date: 050815   Chapter: 14-12c       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: 19th Replacement Co, 18th Personnel Services Bn, Ft. Bragg, NC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 050517; wrongfully use marijuana a schedule III controlled substance on between 14 March 2005 and 13 April 2005 at or near Ft. Bragg, NC: reduction to E-4; forfeiture of $938.00 of pay per month for two months; extra duty and restriction for 45 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 040211    Current ENL Term: 2 Years  ?????
Current ENL Service: 	1 Yrs, 06Mos, 04Days ?????
Total Service:  		4 Yrs, 10Mos, 13Days ?????
Previous Discharges: 	RA 001003-040210
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 42A10 Human Resources Spc   GT: 107   EDU: HS Grad   Overseas: Germany (010618-040311)   Combat: None
Decorations/Awards: AAM-2, NSDM, GWOTSM, NCOPD, ASR, OSR

V.  Post-Discharge Activity
City, State:  Waldorf, MD
Post Service Accomplishments: Nothing provided by the Applicant.


VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 7 July 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 12c, AR 635-200, by reason of misconduct—for testing positive for an illegal controlled substance, 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 submitted a statement in his own behalf, not contained in the file.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. On 20 July 2005, 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 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 the misconduct diminished the quality of service below that meriting a fully honorable discharge. The record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  Furthermore, the analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command.  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.   Therefore, 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: 091202         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 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 AR20090004041
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