Applicant Name:  ?????

Application Receipt Date: 2009/02/03	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: 030609
Discharge Received: 			   Date: 030725   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: C Co, Spec Trps Bn, Fort Hood, TX 

Time Lost: Confinement/Military Authorities for 25 days (030518-030603).

Article 15s (Charges/Dates/Punishment): 021207, wrongful use of marijuana (020916-021016); reduction to E-1, forfeiture of $552 pay x 2 months, extra duty for 45 days, and restriction for 14 days (FG).

Courts-Martial (Charges/Dates/Punishment): 030512, SCM, wrongful posssession of marijuana (030507) and wrongful use of marijuana (030507); forfeiture of $767 pay x 1 month, and confinement for 30 days.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 010419    Current ENL Term: 3 Years  ?????
Current ENL Service: 	02 Yrs, 02Mos, 20Days ?????
Total Service:  		02 Yrs, 02Mos, 20Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 92G10 Food Service Spec   GT: 89   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AAM, NDSM, ASR

V.  Post-Discharge Activity
City, State:  Killeen, TX
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 9 June 2003, 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 marijuana (031202); the applicant was caught smoking marijuana and admitted to it during questioning by CID, and convicted by a Summary Court-Martial for this offense, and the next day he tested positive for marijuana, 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, voluntarily waived consideration his case by an administrative separation board contingent upon him receiving a characterization of service of no less favorable than general, under honorable conditions, and submitted 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.  24 June 2003, the separation authority approved the conditional waiver request, 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 marijuana dated 16 October 2002, 13 November 2002, 6 May 2003 and 7 May 2003, and the entire separation packet to include his Article 15 and Summary Court-Martial alludes to the applicant's serious misconduct due to his use of marijuana.  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 marijuana, 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 "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., four 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. 
       
       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 14-12c, AR 635-200, commission of a serious offense.  Further, the DD Form 214 shows a separation (SPD) code of "JKK," which according to AR 635-5-1, Separation Program Designator (SPD)/Reentry (RE) Codes Cross-Reference Table, requires a reentry eligibility (RE) code of "4."
       
       The applicant's record contains an approved Bar to Reenlistment dated 26 November 2002.
       
       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 and 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; at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If reenlistment is desired, the applicant should contact the local recruiter to determine eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes.
       
       Also, 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, to include the rentry eligibility (RE) code 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: 4 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 directs ARBA Support Division-St Louis to administratively change block 27, reentry eligibility (RE) code to "4." Except for the foregoing modification 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 Support Division-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 AR20090005810
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