Applicant Name:

Application Receipt Date: 2009/01/21	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached 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: 051117
Discharge Received: 			   Date: 051227   Chapter: 14-12c      AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: 54th QM Co, 240th QM Bn, Fort Lee, VA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 050729, at or near Fort Lee, VA, between on or about 6 June 2005 and 6 July 2005, the applicant wrongfully used marijuana; reduction to Private (E-1), forfeiture of $617.00 pay per month for two months, extra duty for 45 days and restriction to the limits of the dining facility, medical facility, place of worship, troop area, and living quarters for 45 days (FG).

050305, at Fort Lee, VA, on or about 13 January 2005, the applicant was disorderly, in violation of Article 134; forfeiture of $376.00, suspended, to be automatically remitted if not vacated before 5 September 2005, extra duty for 14 days, and restriction for 14 days, suspended, to be automatically to be automatically remitted if not vacated before 23 April 2005 (CG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 031029    Current ENL Term: 3 Years  ?????
Current ENL Service: 	02 Yrs, 02Mos, 27Days ?????
Total Service:  		03 Yrs, 07Mos, 05Days ?????
Previous Discharges: 	USAR 030530-031028/NA
                                          ADT 030210-030529/HD
                                       USAR 021220-030209/NA   
                                         IADT 020821-021219/UNC 
                                       USAR 020523-Ukn
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92M00/Mortuary Affairs Specialist   GT: 98   EDU: HS GRAD   Overseas: SWA   Combat: Iraq (Dates NIF)
Decorations/Awards: NDSM, ASR, AFRM W/M, GWOTSM, ICM

V.  Post-Discharge Activity
City, State:  Glenco, IL
Post Service Accomplishments: None listed by the applicant.





VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 17 November 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—Commission of a Serious Offense —for receiving a Field Grade Article 15 for wrongful use of illegal drugs , with a general, under honorable conditions discharge.  He was advised of his rights.  The applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board.  The applicant submitted a statement on his own behalf which was not found in the available 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 with a general, under honorable conditions discharge.  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 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-commission of a serious offense.  However, AR 635-200, Chapter 2, procedures for separation , section 1, 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  commission of a serious offense, due to receiving a Field Grade Article 15 for wrongful use of illegal drugs, and much of the separation packet to include his Article 15 alludes to the applicant's serious misconduct due to his use of illegal drugs.  The analyst acknowledges that the separation packet does not contain the (2), which implies abuse of illegal drugs and that command inadvertently omitted the (2).  AR 635-200, section 3, 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 under the MCM.  However, the specific circumstances of the offense warranted separation and the applicant was notified that he was being specifically separated for wrongful use of illegal drugs, which based on the evidence of record, the command intent was for abuse of illegal drugs which is serious misconduct.  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., a positive urinalysis for marijuana).  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made. 
       
       The file contains a General Officer Memorandum of Reprimand for DUI dated 2 November 2004.
       
       The file contains a CID Report of Investigation dated 21 July 2005 and a Military Police Report dated 20 October 2004.
       
       
       
       
       
       
       
       

       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 issues and documents he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The analyst determined that the discharge was appropriate because the quality of the applicant's 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.  Before initiating action to separate him from the Army, the command ensured the applicant was appropriately counseled about the deficiencies, which could lead to separation, and provided treatment for his alcohol and drug issues.  The evidence of record established that the applicant was afforded a reasonable opportunity to overcome noted deficiencies.  As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.  Furthermore, the analyst acknowledges the doctor's opinion of the reason for the applicant's misconduct outlined in documents with his application.  However, in review of the applicant’s entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted, the applicant fully understood the difference between right and wrong.  Further, 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: 10 November 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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090005527
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