Applicant Name:  ?????

Application Receipt Date: 2009/02/11	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: 080919
Discharge Received: 			   Date: 081003   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct, (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: 59th Military Police Battalion, Fort Carson, Colorado 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080717,  Wrongful use of marijuana (080406 and 080506), reduction to the 
grade of E3; forfeiture of $417.00 pay for 1 month, suspended, to be automatically remitted if not vacated by 
090113; extra duty for 14 days; restriction to the 759th MP Battalion area for 14 days (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: 050707    Current ENL Term: 03 Years  23 weeks
Current ENL Service: 	3 Yrs, 02Mos, 27Days ?????
Total Service:  		3 Yrs, 02Mos, 27Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 63B10/Wheeled Vehicle Mechanic   GT: 99   EDU: HS Grad   Overseas: NIF   Combat: NIF
Decorations/Awards: NDSM, GWOTSM, ASR  (Listed on Commander's separation notification.)

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None submitted by applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 16 September  2008, the unit commander notified the applicant of 
initiation of separation action under the provisions of Chapter 14, paragraph 12c(2), AR 635-200, by reason of 
misconduct for commission of a serious offense in that on at least two occasions for wrongful use of marijuana 
(080406 and 080506), 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 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 22 
September 2008, 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 marijuana 
dated 06 April 2008 and 06 May 2008, and the entire separation packet to include his Article 15 alludes to the applicant's 
serious misconduct due to his use of marijuana.  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).  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 offense 
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; 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. 
       

       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 issue submitted with the application, the analyst found no 
mitigating factors that would merit an upgrade of the applicant's discharge.  The applicant’s discharge was appropriate because the quality of 
the former Soldier’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military 
personnel.  By the misconduct, the applicant diminished the quality of service below that meriting a fully honorable discharge.  The applicant 
provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service 
mitigated the misconduct or poor duty performance.  Furthermore, the analyst noted the applicant's issue, however, the U.S. Army does not have, 
nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 
293 requesting a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for 
discharge or both were improper or inequitable.  Therefore, 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: 18 November 2009         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: ?????

Witnesses/Observers: ?????
 

Exhibits Submitted: ?????



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
								         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 AR20090006257
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