Applicant Name:  ?????

Application Receipt Date: 2009/06/15	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed 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: NIF
Discharge Received: 			   Date: 040608   Chapter: 10      AR: 635-200
Reason: In Lieu of  Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: C Co, 3-7 IN Regt, Fort Stewart, GA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): Wrongful use of marijuana (031008-031107); reduction to E-1, forfeiture of $575 x 2, and extra duty for 45 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 020528    Current ENL Term: 3 Years  ?????
Current ENL Service: 	02 Yrs, 00Mos, 11Days ?????
Total Service:  		02 Yrs, 00Mos, 11Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 84   EDU: HS Grad   Overseas: Southwest Asia   Combat: Kuwait/Iraq (030121-030826)
Decorations/Awards: NDSM, GWOTEM, GWOTSM, ASR, CIB

V.  Post-Discharge Activity
City, State:  Shirley, AR
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 14 April 2004, the applicant was charged with wrongful use of marijuana  (031206-040105).  Also, on 17 May 2004, the applicant was additionally charged with wrongful use of marijuana (031119-031219).  On 18 May 2004, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  Further, the applicant indicated that he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant's legal counsel submitted a statement in his behalf.  The applicant's chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  On 19 May 2004, the separation authority approved the Chapter 10 request with an under other than honorable conditions discharge.  The applicant's record contains a CID Report of Investigation dated 27 January 2004.
       
       The analyst noted that the DD Form 2624 (Speciment Custody Document-Drug Testing) found in the applicant's available records shows that the test was coded RO which indicates "Rehabilitation Testing."  The commander directs a Soldier to test based on the Soldier's alcohol/drug abuse treatment plan.  The Limited Use Policy applies to this test basis, per AR 600-85.  However, in a memorandum dated 19 December 2003, the unit commander stated the applicant was tested as part of the company urinalysis testing on 19 December 2003 in accordance with company letter # 6, which directs all personnel that have previously tested positive during a urinalysis to be tested in conjunction with the company weekly testing.  In view of the aforementioned, the analyst determined that the code on the DD Form 2624 should have been coded IO which indicates " Inspection Other."  As further evidence that the test was improperly coded, the applicant consulted with defense counsel in conjunction with his administrative discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, and defense counsel did not raise the issue as to characterization.  The analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  Furthermore, 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 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

       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 and the issues he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  The analyst noted that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.  Furthermore, the analyst noted the applicant’s issues; however, the file was void of any evidence of PTSD or injuries sustained by the applicant while in Iraq and the applicant did not provide any corroborating evidence of the aforementioned medical issues.  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.  Finally, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  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: 23 July 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 characterization of service is too harsh, and as a result it is inequitable.  The Board determined that the length and quality of the applicant’s service, to include his combat service, mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined that the reason for discharge was proper and equitable and voted not to change it.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 3    No change 2
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 AR20090010610
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