Applicant Name:  ?????

Application Receipt Date: 2009/03/10	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 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: 080804
Discharge Received: 			   Date: 080903   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: 11th QM Co, 82nd BTB, Ft Bragg, NC 

Time Lost: AWOL x3 for 51 days (080506-080522), (080604-080611) & (080620-080712), military confinement (080620-080713) 27 days, total of  78 days, modes of return, unknown. 

Article 15s (Charges/Dates/Punishment): 080430, failed to go at the time prescribed to his appointed place of duty on or about (080409), extra duty for 14 days (Summ)

Courts-Martial (Charges/Dates/Punishment): SCM, (080708) FTR x5 (080306, 080220, 080220, 080205, 080114), wrongfully use marijuana (080528), AWOL x2 (080604-080612 and 080506-080523); reduction to E1, forfeiture of $897 pay and confinement for 30 days. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 070328    Current ENL Term: 3 Years  ?????
Current ENL Service: 	1 Yrs, 03Mos, 18Days ?????
Total Service:  		1 Yrs, 03Mos, 18Days ?????
Previous Discharges: 	None
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 92R1P/Parachute Rigger   GT: 89   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: GWOTSM, ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 4 August 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 12c, AR 635-200, for commission of serious offense in that he tested positive for marijuana on two different occasions, went AWOL on three different occasions, and failed to report to duty on three different occasions with an under other than honorable conditions discharge.  He was advised of his rights.  The applicant was advised that he could request an administrative separation board or submit a statement and he elected to submit matters within seven days or waive all rights and the analyst presumed government regularity in the separation process.  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 under other than honorable conditions discharge.  On 18 August 2008, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than 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 testing positive for marijuana on two different occasions, went AWOL on three different occasions, and failed to report to duty on three different occasions.  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 on two different occasions for marijuana use, 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, 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., 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 carefully examining the applicant’s record of service during the period of enlistment under review and the issue and documents submitted with the application, the analyst determined that the discharge was both proper and equitable.  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 service below that meriting a fully honorable discharge.  Furthermore, the analyst noted that the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  The analyst noted the applicant's issue; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  Therefore, the analyst determined 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: 2 December 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 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: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090007594
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