Applicant Name:  ?????

Application Receipt Date: 2010/06/29	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "My original article 15 hearing I was not able to have witnesses or evidence on my behalf and was found guilty. On the appeal of such act my witnesses were ignored and the independant hair folicle test that exonerated me of illegal use was ignored.  I was discharged for substance abuse in which I did not use and had evidence to prove it, I was still discharged on the grounds that military drug testings (are never wrong)."

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: 080924
Discharge Received: 			   Date: 081010   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: A Btry, 1/43d AMD BN, Fort Bliss, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080714, Disrespecting a commissioned officer (080528) and disrespecting a noncommissioned officer (080528), reduction to E2; forfeiture of $352.00 per month for one month (suspended), 14 days extra duty; and 14 days restriction, (CG).

080827, Disobeying a lawful order from a commissioned officer (080806) and wrongfully using cocaine between (080706 and 080709), reduction to E1; forfeiture of $673.00 per month for one month (suspended), 45 days extra duty; and 45 days restriction, (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 070503    Current ENL Term: 05 Years  ?????
Current ENL Service: 	01 Yrs, 05Mos, 08Days ?????
Total Service:  		01 Yrs, 08Mos, 02Days ?????
Previous Discharges: 	RA-030430-030722/UNC
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 14T10/Patriot Oper/Maint   GT: 112   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWTOSM, ASR

V.  Post-Discharge Activity
City, State:  Green Cove Springs, FL
Post Service Accomplishments: None Listed








VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 24 September 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 having received a Company Grade Article 15 (080714) for disrespect towards a commissioned officer and being disrespectful in language towards a noncommissioned officer; and receiving a Field Grade Article 15 (080827), for disobeying a lawful order and wrongful use of cocaine, 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 an under other than honorable conditions discharge.  On 25 September 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 documents, and the issues he submitted, 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. 
       
       Furthermore, by violating the Army's policy not to possess or use illegal drugs, the applicant 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 general, under honorable conditions 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 was discharged for drug use which he did not use, had evidence to prove it and was discharged based on military drug testings are never wrong.  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 do 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.  
       
       Further, 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: 28 April 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: A 7 page essay, copies of his congressional correspondence and copies of military documents already contained in his OMPF.

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 AR20090010915
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