Applicant Name:  ?????

Application Receipt Date: 2009/04/22	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: 070822
Discharge Received: 			   Date: 070906   Chapter: 14-12c(2)    AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: Co E, 4th FSB, 1st BCT, Ft Hood, TX 

Time Lost: AWOL for 140 days, (070118-070606), mode of return is unknown.

Article 15s (Charges/Dates/Punishment): 070725, AWOL (070118-070607), wrongful use of marijuana (070518-070607), wrongful use of oxycodone (070605-070607) and wrongful use of oxymorphone (070605-070607); reduction to E4, forfeiture of $989 pay per month for 2 months, extra duty and restriction for 45 days (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: 040628    Current ENL Term: 4 Years  ?????
Current ENL Service: 	3 Yrs, 02Mos, 09Days ?????
Total Service:  		5 Yrs, 01Mos, 20Days ?????
Previous Discharges: 	RA 020228-040627/HD Immediate reenlistment
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 63H10 Tracked Vehicle Mech   GT: 93   EDU: HS Grad   Overseas: SWA   Combat: Iraq x2 (030414-040406 & 051204-061202)
Decorations/Awards: ARCOM x2, AAM, USA, USAF PUC, VUA, NSM, GWOTEM, GWOTSM, ICM, ASR, OSR x2, CAB

V.  Post-Discharge Activity
City, State:  Seguin, TX
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 22 August 2007 , 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 in that he was AWOL and wrongfully used controlled substances, to wit: marijuana, oxycodone and oxymorphone, with a general, under honorable conditions discharge.  He was advised of his rights.  The applicant waived his right to consult 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 Army 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 4 September 2007, 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 record contains a GOMOR dated 20 April 2005 for driving while intoxicated.

       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 issues 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 special trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as a NCO, 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 the misconduct diminished the quality of service below that meriting a fully honorable discharge. 
       
       Furthermore, the analyst noted the applicant's issue; however, the Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank.  The Board may only change the characterization or reason for discharge.  If an applicant believes there is an error or injustice in his discharge, he then may make an application to the Army Board for Correction of Military Records, utilizing a DD Form 149, which can be obtained on line or from veteran’s assistance offices.
        
       Additionally, the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)", and the separation code is "JKK."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.     
       
       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: 1 February 2010         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 AR20090008285
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