Applicant Name:  ?????

Application Receipt Date: 2009/06/19	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: 070409
Discharge Received: 			   Date: 070712   Chapter: 12-1d     AR: 135-178
Reason: Misconduct-Abuse of Illegal Drugs	   RE:     SPD: NA   Unit/Location: A Co, 389th EN Bn, Iowa City, IA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 040802    Current ENL Term: 5 Years  with an approved moral waiver (040802)
Current ENL Service: 	02 Yrs, 11Mos, 11Days ?????
Total Service:  		07 Yrs, 00Mos, 20Days ?????
Previous Discharges: 	USAR-000623-010605/NA
                                       IADT-010606-011005/HD
                                       USAR-011006-030314/NA
                                       AD-030315-040603/HD
                                       USAR-040604-060801/NA
                                       ARNG-040802-040802/UNC
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 96   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (030602-040505)
Decorations/Awards: ARCOM-2, AGCM, ARCAM, AFRM-W/'M" DEV, NDSM, GWOTEM, GWOTSM, ASR, ARCOTR, OSB, CAB

V.  Post-Discharge Activity
City, State:  North Liberty, IA
Post Service Accomplishments: The applicant claims he attended Kirkwood College and paid for a substance abuse evaluation.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 9 April 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, Paragraph 12-1d, AR 135-178, by reason of misconduct—commission of a serious offense/abuse of illegal drugs for testing positive for marijuana (070210), with a general, under honorable conditions discharge.  He was advised of his rights.  The unit commander stated in the notification memorandum that he was suspending the separation action for 45 days to afford the applicant an opportunity to exercise his rights.  The applicant was provided  30 days to acknowledge receipt of the notification letter to discharge him from the  United States Army Reserve, exercise his elections of rights and submit a statement in his own behalf.  The applicant failed to respond within 30 days which constituted a waiver of his rights under the provisions of AR 135-178, paragraphs 3-4a(8) and 3-12b.  Further, the applicant’s record is void of the complete facts and circumstances concerning the events that led to a discharge from the United States Army Reserve.  On 12 July 2007, DA, HQ, 89th Regional Readiness Command, Wichita, KS, Orders 07-193-00013, discharged the applicant from the United States Army Reserve, effective date:  12 July 2007, with a general, under honorable conditions discharge. 

       b.  Legal Basis for Separation:  
       Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel of the U.S. Army Reserve.  Chapter 12 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 available military records for the period of enlistment under review, the issues and documents he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The applicant’s record is void of the complete facts and circumstances concerning the events that led to a discharge from the United States Army Reserve.  However, on 12 July 2007, DA, HQ, 89th Regional Readiness Command, Wichita, KS,  Orders 07-193-00013, discharged the applicant from the United States Army Reserve, effective date:  12 July 2007, with a general, under honorable conditions discharge.  This document identifies the characterization of the discharge and the analyst presumed Government regularity in the discharge process.  Barring evidence to the contrary, 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.  Furthermore, the analyst noted the applicant’s issue indicating that he was never admitted into or enrolled in the Army Substance Abuse Program; however,  AR 600-85, paragraph 3-8 entitled self referrals, states that the applicant could have self referred himself to the Army Substance Abuse Program (ASAP) counseling center for assistance.  Further, in regards to the applicant's issue in that he did not receive legal counseling, the evidence of record shows that the applicant was provided  30 days to acknowledge receipt of the notification letter to discharge him from the  United States Army Reserve, exercise his elections of rights and submit a statement in his own behalf.  The applicant failed to respond within 30 days which constituted a waiver of his rights under the provisions of AR 135-178, paragraphs 3-4a(8) and 3-12b.  Additionally, 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.  The analyst also noted that the applicant indicated in his issue that this was a one time mistake; however, even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the United States Army Reserve.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the  United States Army Reserve, and was prejudicial to good order and discipline.  This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a honorable discharge.  Finally, the analyst determined that the applicant’s Official Military Personnel File (OMPF) does not contain all the specific documents that would indicate the reason for the separation action from the United States Army Reserve.  If the applicant desires to appear before a personal appearance Board, the burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration.   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: 31 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 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: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090011017
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