Applicant Name:  ?????

Application Receipt Date: 2009/06/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "The administrative discharge in this case did not properly adhere to Army Regulations and Standards.  At the time of the discharge, I was pending a MEB.  My MEB was not properly considered by either my Chain of Command or the Convening Authority.  I should have been medically retired or been given a medical discharge."  He provides numerous documents with his application which are enclosed for the Board's review and consideration.

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: 060920
Discharge Received: 			   Date: 070614   Chapter: 4-2b      AR: 600-8-24
Reason: Unacceptable Conduct	   RE:     SPD: JNC   Unit/Location: E Co, 3rd BCT, 101st Airborne Div, Ft Campbell, KY 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 060821, wrongfully use cocaine (060321-060324); reprimand, forfeiture of 1/2 months pay ($2251) for two months (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 001222    Current ENL Term: Indef Years  ?????
Current ENL Service: 	6 Yrs, 05Mos, 23Days ?????
Total Service:  		7 Yrs, 11Mos, 11Days ?????
Previous Discharges: 	RA 001222-070614/HD
                                       RA 950113-960630/HD
Highest Grade: CPT		Performance Ratings Available: Yes    No 
MOS: 13A Field Artillery   GT: NA   EDU: College Grad   Overseas: SWA   Combat: Iraq (030227-040219) & Afghanistan (020115-020713)
Decorations/Awards: ARCOM/wV Device, ARCOM x2, AAM, VUA, MUC, AGCM, NDSM x2, ACM, ICM, GWOTEM, GWTOSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Clarksville, 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 20 September 2006, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraph 4-2b(11), AR 600-8-24, by reason of commission of an act of personal misconduct involving drugs.  He tested positive for cocaine on a unit urinalysis conducted on 24 March 2006. 
       The applicant was directed to show cause for retention in the Army after testing positive for cocaine use.  He was advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a Board of Inquiry.  
       On 21 February 2007, the applicant appeared, with counsel, before a Board of Inquiry (Show Cause Board).  The Board found that the applicant committed an act of personal misconduct by wrongfully using cocaine.  The Board recommended separation with a general, under honorable conditions discharge.  
       The Ad Hoc Review Board recommended that the applicant’s elimination be accepted with issuance of a general, under honorable conditions discharge.  
       On 25 May 2007, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. 
       The applicant's record contains a Memorandum of Reprimand dated 23 August 2006 for wrongfully possessing and using cocaine and a CID Report dated 13 April 2006. 

       b.  Legal Basis for Separation:  
       Army Regulation 600-8-24 sets forth the basic authority for Officer Transfers and Discharges.  Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, and  the issue, and documents he submitted, the analyst determined that the evidence was not sufficiently mitigating to warrant an upgrade of the discharge under review.  
       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 Army Officers.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.
       The analyst acknowledges the applicant's Physical Evaluation Board (PEB) Proceeding outlined in the documents with his application.  The applicant states that his chain of command or convening authority should have medical retired him or given him a medical discharge because he was pending a Medical Evaluation Board.   However, during the Ad Hoc Board elimination proceeding the approving authority was aware of the PEB  and opted to accept the elimination for cause and not the disability reason.  Further, there are two DD Form 214's in the record one for unacceptable conduct and another for disability severance pay.  The DD 214 for disability, severance pay  was rescinded and the DD Form 214 for unacceptable conduct was the appropriate document.
              The applicant contends that he was going through a medical evaluation board.  However, DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s medical record and the process is stopped. 
       Additionally, the analyst noted the applicant's issue requesting a medical discharge; however, the change that the applicant requests to be made to his DD Form 214, does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding this matter.  An application for that Board can be obtained online or from the Veterans Administration. 
       Further, in review of the applicant’s entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted, the applicant fully understood the difference between right and wrong when he committed the misconduct that caused the command to initiate the elimination action.
       Therefore, the reason for discharge and the characterization of service remain both proper and equitable.   

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 23 April 2010         Location: Atlanta, GA

Did the Applicant Testify?  Yes     No  

Counsel: [redacted]

Witnesses/Observers: None 

Exhibits Submitted: Character letter from [redacted]

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 AR20090010596
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