Applicant Name:  ?????

Application Receipt Date: 2009/02/04	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: 051118
Discharge Received: 			   Date: 060117   Chapter: 14-12c(2)      AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: Rear Det, 2-11 ACR, Fort Irwin, CA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 050915, wrongful use of boldenone (050305-050805); reduction to E-4, forfeiture of $600 pay x 2 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: 020502    Current ENL Term: 4 Years  block 12e on the DD Form 214 total prior inactive service  shows 02 Yrs, 00 Mos, 10 Day, the Enlisted Record Brief (ERB) indicates a BSED of (19000101). However, the analyst backed dated the BSED to correspond with block 12e.
Current ENL Service: 	03 Yrs, 08Mos, 16Days block 12c on the DD Form 214 net active service this period is incorrect, should read 03 Yrs, 08 Mos, 16 Days
Total Service:  		07 Yrs, 11Mos, 11Days ?????
Previous Discharges: 	NIF-980207-000216/NA
                                       RA-000217-020501/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 91   EDU: GED   Overseas: Germany/Southwest Asia   Combat: Iraq (050101-050515)

Decorations/Awards: NDSM, GWOTSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Hawthorne, CA
Post Service Accomplishments: The applicant submitted a document that shows he is employed as Deputy Sheriff with the Los Angeles County Sheriff's Department.  

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
             The evidence of record shows that on 18 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/illegal drug use for testing positive for steroids (050805), with a general, under honorable conditions discharge.  He was advised of his rights.  The applicant waived 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 29 December 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. 

            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 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  commission of a serious offense, due to his positive urinalysis for steroids dated 5 August 2005, and the entire separation packet to include his Article 15 alludes to the applicant's serious misconduct due to his use of steroids.  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).  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 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 steroids, which based on the evidence of record, the command's 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 "3," 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 steroids).  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made. 

            The analyst noted that on the applicant's DD Form 214 block 27, reentry eligibility (RE) code reads "3," however, the separation authority approved the applicant's discharge under the provisions of Chapter 14, paragraph 12c, AR 635-200, commission of a serious offense, which according to AR 635-5-1, Separation Program Designator (SPD)/Reentry (RE) Codes Cross-Reference Table, requires an reentry eligibility (RE) code of "4," as approved by the separation approving authority.
       
       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, but a general discharge 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 during the period of enlistment under review, the issues and documents he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  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 his service below that meriting a fully honorable discharge.  Furthermore, the analyst noted the applicant's issue; however, determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  Further, the analyst considered the applicant’s quality of service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently meritorious to warrant an upgrade to the characterization of service.  
       
       Additionally, the analyst found that someone in the separation process erroneously entered on the applicant's DD Form 214, block 27, reentry eligibility (RE) code of  "3."  The analyst recommends that block 27 be administratively changed to "4" as approved by the separation approving authority.  Except for the foregoing modification to the applicant's reentry eligibility (RE) code, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable. 
       
VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 30 October 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 directs ARBA St. Louis to administratively change block 27, "Reentry Eligibility (RE) Code" to "4."  Except for the foregoing modifications to the applicant's Reentry Eligibility (RE) code, 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: The Board directs ARBA St. Louis to administratively change, block 27, "Reentry Eligibility (RE) Code" to "4."										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090005770
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