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: NIF
Discharge Received: 			   Date: 081003   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, 1/77th AR, Fort Bliss, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080627, Wrongful use of cocaine X 4, between on or about 22 April 2008 and 23 April 2008, 18 April 2008 and 21 April 2008, 14 April 2008 and 15 April 2008, and 10 April 2008 and 13 April 2008; reduction to E1, forfeiture of $673.00 pay per month for two months, and 45 days extra duty and restriction, (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: 060524    Current ENL Term: 04 Years  ?????
Current ENL Service: 	02 Yrs, 04Mos, 10Days ?????
Total Service:  		05 Yrs, 01Mos, 13Days ?????
Previous Discharges: 	RA-030821-060523/HD
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 13F10/Fire Support Specialist   GT: 103   EDU: GED   Overseas: Germany, Southwest Asia    Combat: Iraq (061101-071213)
Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWOTSM, ICMS, ASR, OSR-2, CAB

V.  Post-Discharge Activity
City, State:  Largo, FL
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 4 September 2008, the applicant was charged with the wrongful use of marijuana between on or about 19 July 2008 and 18 August 2008.  On 9 September 2008, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  Further, the applicant indicated that he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant did not submit a statement in his own behalf.  The applicant's chain of command's recommendation are not contained in the available record and the analyst presumed government regularity in the discharge process.  On 26 September 2008, the separation authority approved the Chapter 10 request with an under other than honorable conditions discharge.  The applicant was to be reduced to the lowest enlisted rank.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, and the issue he submitted, the characterization of service is improper.  The analyst noted that the government introduced into the discharge packet the results of a biochemical test that was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in Chapter 6, AR 600-85.  Use of this information mandates award of a fully honorable characterization of service.  Accordingly, the analyst recommends that the applicant’s characterization of service be upgraded to fully honorable.  However, the analyst found that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.
       
       Furthermore, the issues the applicant made in reference to disability determination and pay and rank restored, does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 or apply online at http://actsonline.army.mil, regarding this matter.
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 21 July 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 noted that the Government introduced into the discharge packet the results of a biochemical test that was part of the applicant’s Army Substance Abuse Program (ASAP) treatment plan.  This is limited use information as defined in Chapter 6, AR 600-85.  Use of this information mandates award of a fully honorable discharge.  Accordingly, the Board voted to change the characterization of service to fully honorable.  However, the board found that the reason for discharge was fully supported by the record and voted not to change it.









        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090006106
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