Applicant Name:  ?????

Application Receipt Date: 2009/07/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: Applicant in effects states that an isolated incident lead to his discharge and that he was denied due process. He states that his record of service was good and desires re-entry into the US Army.

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: 071029
Discharge Received: 			   Date: 071109   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: E Co, 309 MI Bn, 111th MI Bde, Ft. Huachuca, AZ 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 070921, wrongfully traveled to Mexico, wrongfully possessed cocaine with intent to distribute, wrongfully used cocaine, wrongfully imported cocaine to the United States, wrongfully possessed Methandrostenolone, wrongfully used Methandrostenolone (070825), reduction to E1, forfeiture of $650 x2 (suspended), 45 days restriction (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  31
Current ENL Date: 070417    Current ENL Term: 5 Years  ?????
Current ENL Service: 	0 Yrs, 6Mos, 23Days ?????
Total Service:  		0 Yrs, 6Mos, 23Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: None   GT: 124   EDU: Coll Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM

V.  Post-Discharge Activity
City, State:  Sierra Vista, AZ
Post Service Accomplishments: Several letters of recommendation provided by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 29 October 2007, 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—for wrongful possession, importation and use of cocaine and methandrostenolone (070825) and failed to obey a lawful order (070825), with an uncharacterized discharge.  He was advised of his rights.  
       
       
       On 29 October 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an uncharacterized discharge.  
       
       On 7 November 2007, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of Uncharacterized.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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 carefully examining the applicant’s record of service during the period of enlistment under review and the issue and documents submitted with the application, the analyst determined that the discharge was both proper and equitable.  
       
       The analyst determined that the applicant’s discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant, by violating the Army's policy not to possess or use illegal drugs, 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 service below that meriting a fully honorable discharge.  
       
       Furthermore, the analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  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 Army, 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 fully honorable discharge. 
       
       The applicant contends his chain of command did not allow him to engage his defense following their order to discharge him.  However, in reviewing discharges, the Army Discharge Review Board presumes regularity in the conduct of government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the applicant.  The applicant’s record of service was marred by a field grade Article 15 for violations of Article 92, and Article 112a, UCMJ, which are considered serious offenses and could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not refer the applicant for a court-martial but opted instead for which the command could have pursued a more severe course of action with an uncharacterized discharge.  The applicant consulted with legal counsel and provided a statement in his own behalf in accordance with the rules for due process.  In the review of the applicant’s entire records, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Additionally, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment. 
       
       Therefore, the analyst determined 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: 26 May 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: Letter to the Board, Character references, Article 15, Counseling record, Training certificate, APFT, Resume, DD Form 214.


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: 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 AR20090013235
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