Applicant Name:  ?????

Application Receipt Date: 2009/06/22	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: 960618
Discharge Received: 			   Date: 960716   Chapter: 14-12c       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: HHC, USAG, Fort Clayton, PM 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 950629, Wrongfully using cocaine between (950509 and 950523), reduction to E1; forfeiture of $200.00 per month for 2 months (suspended); 45 days extra duty; and 45 days restriction, (FG).

The unit commander's memorandum of recommendation makes reference to the applicant having received a Summary Article 15 for assault.  The Article 15 was not found in the available records.

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 930922    Current ENL Term: 04 Years  ?????
Current ENL Service: 	02 Yrs, 09Mos, 25Days ?????
Total Service:  		02 Yrs, 09Mos, 25Days ?????
Previous Discharges: 	None
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 71L10/Administrative Specialist   GT: 96   EDU: HS Grad   Overseas: Korea, Panama   Combat: None
Decorations/Awards: NDSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Snellville, GA
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 18 June 1996, 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 for having received a Field Grade Article 15 for testing positive on an urinalysis, receiving a Summary Article 15 for assault; and being apprehended for larceny of AAFES property, with a general, under honorable conditions discharge.
       
       He was advised of his rights.  The applicant waived 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 an under other than honorable conditions discharge.  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 applicant's record contains a Military Police Report dated 22 May 1996.

       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 documents, and issues submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       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.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant provided no independent 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 noted the applicant's issue that he wants his narrative reason for separation changed.  However, the narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 14, Paragraph 14-12c, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct", and the separation code is "JKQ."  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.  
       
       Furthermore, the analyst noted the applicant's contention that he never used drugs and that he has a false positive for cocaine which was caused by the 4 different types of medication he was on.  However, the analyst is unable to determine whether these contentions have merit because the facts and circumstances surrounding the drug test were not in the available records.  The burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts.
       
       Further, applicant contends that the new Commander and First Sergeant had it out for him; however, 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.
       
       The applicant makes reference to not having any documentation of his meeting with the JAG Officer listed in his record, however the election of rights memorandum dated 20 June 1996, shows that the applicant declined the opportunity to consult with legal counsel.
       
       In view of the foregoing the analyst determined that the characterization of service and reason for discharge 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: 30 April 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: One character reference letter.

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

















Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090010888
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