Applicant Name:  ?????

Application Receipt Date: 2009/02/09	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 submitted bythe 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: 061116
Discharge Received: 			   Date: 061201   Chapter: 14-12b       AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: D Co, 202nd MI Bn, Fort Gordon, GA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 060923, wrongful use of cocaine (060801-060808); reduction to E-4, forfeiture of $1009 pay x 2 months, extra duty for 45 days and restriction for 45 days (suspended), (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  31
Current ENL Date: 050222    Current ENL Term: 5 Years  ?????
Current ENL Service: 	01 Yrs, 09Mos, 10Days ?????
Total Service:  		11 Yrs, 08Mos, 12Days The evidence of record does not support block 12d on the DD Form 214, total prior active service of 04 Yrs, 00 Mos, 00 Days.  However, the record does substantiate a period of prior active service 00 Yrs, 03 Mos, 16 Days, as initial active duty training.  The analyst opines that the DD Form 214 is incorrect.   
Previous Discharges: 	ARNG 920930-930713/NA
                                       IADT-930714-931029/HD
                                       ARNG-931030-940513/GD
                                       USARCG-940514-020305/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 97B10 CI Agent   GT: 116   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  Pleasantville, NJ
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 16 November 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Paragraph 14-12c(2), AR 635-200, by reason of misconduct-commission of a serious offense for testing positive for cocaine (060808), 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 no less favorable than general, under honorable conditions, 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.  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 on the applicant's DD Form 214, block 25, "Separation Authority" reads "Paragraph 14-12b," block 26, "Separation Code (SPD)" reads "JKA", block 27, "Reentry Eligibility (RE) Code" reads "3," and block 28, "Narrative Reason For Separation" reads "Pattern of Misconduct."  However, the applicant was notified of initiation of separation action under the provisions of Chapter 14, Paragraph 14-12c(2), AR 635-200, by reason of "Commission of a Serious Offense/Drug Abuse," 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."
       
       Further, the analyst also 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(2), AR 635-200, by reason of misconduct-commission of a serious offense/drug abuse.  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/drug abuse, due to his positive urinalysis for cocaine dated 8 August 2006, and the entire separation packet to include his Article 15 alludes to the applicant's serious misconduct due to his use of cocaine.  The analyst acknowledges that the separation approving authority's documentation does not contain the (2), which implies drug abuse 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 testing positive for cocaine, which based on the evidence of record, the command intent was for drug abuse which is serious misconduct.  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 cocaine).  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made. 

       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, 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 during the period of enlistment under review and the issues 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, even though an isolated 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 an isolated incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's isolated 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 isolated incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
       
       Additionally, the analyst found that someone in the separation process erroneously entered on the applicant's DD Form 214, block 25, "Separation Authority" reads "Paragraph 14-12b," block 26, "Separation (SPD) Code" reads "JKA", block 27, "Reentry Eligibility (RE) Code" reads "3," and block 28, "Narrative Reason For Separation" reads "Pattern of Misconduct."  The analyst recommends that block 25, "Separation Authority" be administratively changed to  "Paragraph 14-12c(2)," block 26, "Separation (SPD) Code" to "JKK", block 27, "Reentry Eligibility (RE) Code" to "4," and block 28, "Narrative Reason For Separation" to "Misconduct-Drug Abuse."  Except for the foregoing modifications to the applicant's separation authority, separation (SPD ) code, reentry eligibility (RE) code, and the narrative reason for separation, 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, 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 25, "Separation Authority" to "Paragraph 14-12c(2), block 26, "Separation Code (SPD)" to "JKK"  block 27 , "Reentry Eligibility (RE) Code to "4," and block 28, "Narrative Reason For Separation" to "Misconduct-Drug Abuse."  Except for the forgoing modifications to the applicant's Separation Authority, Separation (SPD) Code , Reentry Eligibility (RE) Code, and the Narrative Reason For Separation," 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 that the ARBA Support Division-St Louis to administratively change  block 25, "Separation Authority" to "Paragraph 14-12c(2), block 26, "Separation Code (SPD)" to "JKK"  block 27 , "Reentry Eligibility (RE) Code to "4," and block 28, "Narrative Reason For Separation" to "Misconduct-Drug Abuse."										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090006084
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