Applicant Name:  ?????

Application Receipt Date: 2009/06/04	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that "after insuing the hard times of life, I Manuel Deval Fox need my discharge changed to honorable. First, it is very difficult to find a job with my type of discharge. I have not been able to find a job in over a year now. Second, With the death of my mother in January 2009 the burden of being a strong man for my family is even more difficult. 

I have three sisters and all of them have babies. we are barely making it with little to spare. Thirdly, with the plate that life has served me i'm still trying my best to attend Tallahassee Community College. By getting my discharge changed to honorable I can attend school with more assistance with the new G.I Bill. 

After being discharged from the United States Army I have learned that drugs not only hurts your body, they hurt your career, family and your life. I have learned this leeson and now I am ready to move foward in life to help myself, my family, and my society."

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: 070420
Discharge Received: 			   Date: 070511   Chapter: 14-12c (2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: E Company, 2nd Battalion, 10th Aviation Regiment, 10th Combat Aviation Brigade, Fort Drum, NY 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 071201, Wrongfully used marijuana between on or about 061113-061213; reduction to Private (E-1); forfeiture of pay; extra duty, suspended, to be automatically remitted if not vacated before (070716); restriction for 45 days, suspended, to be automatically remitted if not vacated before (070716), and an oral reprimand (FG) 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  17
Current ENL Date: 050601    Current ENL Term: 3 Years  22 Weeks
Current ENL Service: 	1 Yrs, 11 Mos, 11 Days An exception waiver was approved on (050308).
Total Service:  		1 Yrs, 11 Mos, 11 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 92F10 Petroleum Supply Spec   GT: 92   EDU: HS Grad   Overseas: Southwest Asia   Combat: Afghanistan (060218-070218)
Decorations/Awards: NDSM, AFGHCM, GWOTSM, ASR, OSR, NATOMDL

V.  Post-Discharge Activity
City, State:  ?????
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 10 April 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense; in that he did between on or about 061113 and 061213 wrongfully used marijuana, 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 25 April 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.  
       
       Furthermore, the analyst noted that the DD Form 2624 (Specimen Custody Document-Drug Testing) found in the applicant's official record shows that the test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty.”  The commander directs an individual test for fitness for duty.  The commander has a suspicion that a Soldier is using a controlled substance, however, does not have probable cause.  The Limited Use Policy applies to this test basis, per AR 600-85.  
       
       However, the evidence of record shows that the applicant received an Article 15 for the offense and  AR 600-85, Table 10-1, titled "Usable in Disciplinary Proceedings " indicates that the applicant should not have received the Article 15 if it was coded "CO."  Additionally, the applicant consulted with legal counsel, who would have informed him if the Limited Use Policy applied.  
       
       In view of the aforementioned, the analyst determined that the code on the DD Form 2624 was in all likelihood incorrect and should have been coded IU for “Inspection Unit” instead of CO for “Competence for Duty.”  The analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  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 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, but a general discharge 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.    
       
       There was a full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense.  The analyst determined that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  
       
       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.   
       
       The analyst noted the applicant's issue regarding him not being able to find a job, the death of his parent and wanting to attend college with the assistance of the GI Bill; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. 
       
       Further, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       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 April 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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090009701
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