Applicant Name:  ?????

Application Receipt Date: 2009/04/29	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: 080407
Discharge Received: 			   Date: 080502   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: B Co, 2-87th IN Regt, Fort Drum, NY 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 071128, wrongful use of cocaine (071019-071022); reduction to E-1 (suspended), forfeiture of $650 pay x 2 months, extra duty for 45 days, and restriction for 45 days (both suspended), (FG).

080201, the suspension of punishment of reduction to E-1, extra duty and restriction for 45 days was vacated for the new offense of disobeying a CPT, by wrongfully going to Canada without an approved pass and a Foreign Country brief.

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 050622    Current ENL Term: 4 Years  with a medical waiver (050602)
Current ENL Service: 	02 Yrs, 10Mos, 11Days ?????
Total Service:  		02 Yrs, 10Mos, 11Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 103   EDU: HS Grad   Overseas: Southwest Asia   Combat: Afghanistan (060202-070523)
Decorations/Awards: AAM, NDSM, ACM-W/2 BSS, GWOTSM, ASR, OSR, NATO MDL, CIB, JMUA

V.  Post-Discharge Activity
City, State:  Muenster, TX 
Post Service Accomplishments: None Listed








VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 8 April 2008, 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 receiving a Field Grade Article 15 for wrongful use of cocaine (071205), with a general, under 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 April 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.

       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, the issues and documents that 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 regarding his positive urinalysis test; however, the applicant's positive urinalysis test was a result of the command’s random urine testing program to maintain good order and discipline within the unit.  Such random testing has been upheld by civilian and military courts as lawful and does not violate the US Constitutional protections against unreasonable search and seizure, under the Fourth Amendment, and self-incrimination, under the Fifth Amendment nor does it violate Article 31 of the Uniform Code of Military Justice.  In addition, military orders to produce a urine sample have been upheld in court as both legal and lawful and essential to military discipline.  
       
       Also, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  
       
       Finally, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In view of the foregoing, 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: 17 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: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090008712
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