Applicant Name:  ?????

Application Receipt Date: 2009/07/28	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he would like to return to full active duty service. His separation code is "JKK", which prevents him from doing so at the current time.

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: 050420
Discharge Received: 			   Date: 050524   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: Headquarters and Service Battery, 3rd Battalion, 321st Field Artillery Regiment, Fort Bragg, NC 

Time Lost: AWOL x 3 for a total of 8 days from (050126-050126), (050316-050316), (050514-050519), the applicant returned to his unit from all three period's of AWOL. 

Article 15s (Charges/Dates/Punishment): 050323, Wrongfully operated a vehicle without a driver's license on or about 041122, and AWOL from 050125-050127, reduction to Private (E-3), forfeiture of $382.00 pay, restriction and extra duty for 14 days (CG)

Article 15, 050405, Wrongfully used marijuana between on or about 050217-050315, reduction to Private (E-1), forfeiture of $617.00 pay for one month, suspended, to be automatically remitted if not vacated before 050704, restriction and extra duty for 45 days, suspended, to be automatically remitted if not vacated before 050704 (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 030428    Current ENL Term: 3 Years  ?????
Current ENL Service: 	2 Yrs, 0 Mos, 19 Days ?????
Total Service:  		4 Yrs, 7 Mos, 21 Days ?????
Previous Discharges: 	ARNG 000926-010604/NA
                                       ADT    010605-010810/NA
                                       ARNG 010811-020610/NA
                                       ADT    020611-020808/HD
                                       ARNG 020809-030427/GD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 13B10 Cannon Crewmember   GT: 110   EDU: HS Grad   Overseas: Korea (030514-040709)   Combat: None
Decorations/Awards: NDSM, GWOTSM, KDSM, ASR, C/A

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None submitted by the applicant.




VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 20 April 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs; in that he wrongfully used marijuana, drove a passenger car without a license and went AWOL, with an under other than honorable conditions discharge. 
       
       He was advised of his rights.  On 20 April 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general, under honorable conditions discharge.  The applicant submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. 
       
       The intermediate commander's reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 25 April 2005, the applicant again consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board.  On 2 May 2005, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than 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, but a general discharge 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, and the issue submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that 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 the 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 in regards to him wanting to return to full time active duty service.  There was a full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses. 
       
       The applicant was discharged under the provisions of Chapter 14-12c(2), AR 635-200, by reason of misconduct-commission of a serious offense/abuse of illegal drugs with an under other than honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct” and the separation code is "JKK."  
       
       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.  
       
       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 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: 4 June 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: None

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: No Change										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change






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 AR20090013361
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