Applicant Name:  ?????

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

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 149 in lieu of 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: 071203
Discharge Received: 			   Date: 080109   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: 542d Maintenance Co, Ft Lewis, WA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 070725, wrongful use cocaine between on or about (070630-070706); reduction to E2, forfeiture of $650 pay per month for two months, one month suspended, to be automatically remitted if not vacated before 080119, and extra duty for 45 days (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 040715    Current ENL Term: 6 Years  ?????
Current ENL Service: 	3 Yrs, 05Mos, 24Days ?????
Total Service:  		3 Yrs, 05Mos, 24Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 63H/Tracked Vehicle Mech   GT: 104   EDU: HS Grad   Overseas: SWA   Combat: Iraq (051110-061107)
Decorations/Awards: ARCOM, NDSM, GWOTSM, ICM, ASRx2, OSR

V.  Post-Discharge Activity
City, State:  Savannah, TN
Post Service Accomplishments: None submitted by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 20 November 2007, 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 wrongful use of cocaine, 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  10 December 2007 , 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 a careful review of all the applicant’s military records, and the issue submitted with the application, 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 the former Soldier’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By the misconduct, the applicant diminished the quality of 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 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.  
       The analyst noted that the evidence of record shows the applicant was initially notified that he was  being separated under the provisions of Chapter 14, Paragraph 14-12c, AR 635-200, by reason of misconduct drug abuse.  However, AR 635-200, Chapter 2, Procedures for Separation , Section I, Notification Procedure 2-1a, Application, the procedures in this chapter will be followed when required by specific reason or reasons for separation.  Paragraph 2-1b, when a Soldier is subject to separation for more than one reason, the following guidelines apply to procedural requirements (including procedural limitations on characterization of service or description of separation):  (1)  the basis for each reason must be clearly established.  Chapter 2, paragraph 2-2a, the commander will cite specific allegations on which the proposed action is based and will also include the specific provisions of this regulation authorizing separation.  The record shows that the applicant was specifically notified that he  was being separated for  drug abuse, due to his positive urinalysis for cocaine dated 070630-070706, and the entire separation packet to include his Article 15s alludes to the applicant's misconduct due to his use of cocaine.  The analyst acknowledges that the separation packet does not reference Chapter 14-12c(2), which is Abuse of Illegal Drugs and that command inadvertently omitted the (2).  Chapter 14, AR 635-200, Section III, Acts or Patterns of Misconduct, 14-12, conditions that subject Soldiers to discharge; 14-12c, commission of a serious offense;  indicates commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related charge under the MCM.  However, the specific circumstances of the offense warranted separation and the applicant was notified that he was being specifically separated for testing positive for cocaine, which based on the evidence of record, the command's intent was for abuse of illegal drugs.  Further evidence in the record to support this rationale was that at the time the applicant was separated someone in the discharge process issued the applicant a DD Form 214 which shows the authority for separation was AR 635-200, Paragraph 14-12c(2) and the narrative for separation was misconduct (drug abuse), with the separation (SPD) code of "JKK," and a reentry eligibility (RE) code of "4," in compliance with AR 635-5-1, which was authenticated by the applicant and the official authorized to sign the DD Form 214.  Notwithstanding this, the analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error.  The applicant had a record of misconduct (i.e., positive urinalysis for cocaine).  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.
       Therefore, 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: 24 November 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 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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090004516
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