Applicant Name:  ?????

Application Receipt Date: 2009/02/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 149 and attached documents submitted by the applicant in lieu of DD Form 293.

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: 080603
Discharge Received: 			   Date: 080721   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: B Co, 1-325th IN Bn (ABN), Fort Bragg, NC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080513, wrongful use of marijuana (080125-080224), and willfully disobeying a lawful order from a SSG (080225); however, it appears that the Article 15 was not executed. 

Courts-Martial (Charges/Dates/Punishment): 080404, SCM, willfully disobeying a lawful order from a SSG (080225), and wrongful use of marijuana (080125-080224); however, it appears that the court-martial was not executed. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 051108    Current ENL Term: 3 Years  21 Weeks
Current ENL Service: 	02 Yrs, 08Mos, 14Days ?????
Total Service:  		02 Yrs, 08Mos, 14Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92Y1P Unit Supply Spec   GT: 85   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (060719-061220) and  (070104-071115)
Decorations/Awards: AAM, NDSM, ICM-W/CS, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  North Hollywood, CA
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 3 June 2008, 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 wrongful use of marijuana (080125-080224), and dereliction of duty (080225), 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 and senior intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  The separation approving authority's documentation waiving further rehabilitative efforts and directing that the applicant be discharged with a characterization of service of general, under honorable conditions is not part of the availablre record and the analyst presumed Government regularity in the discharge process.  On 7 July 2008, DA, HQ, 82nd Airborne Division, Fort Bragg, NC, Orders 189-0280, discharged the applicant from the Regular Army, effective date:  21 July  2008. 

       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 and the issues he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  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 his service below that meriting a fully honorable discharge.  Furthermore, the analyst noted the applicant's issue indicating that the command had no proof of him using drugs and that he took two urinalysis tests and both were negative; however, the evidence of record does not support this issue and the appplicant did not provide any corroborating evidence to substantiate this issue.  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.  Additionally, 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 (Drug Abuse),"the separation code is "JKK," and the reentry code is "RE 4."  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, separation code, entered in block 26, and RE Code, entered in block 27 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.  Also, 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.  Eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Finally, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service, to include the reentry eligibility (RE) code  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: 25 November 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 is inequitable.  The Board found that the length and quality of the applicant's service, to include his combat service (i.e., two combat tours in Iraq), mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  This action entails a change to the reentry eligibility (RE) code to "3."  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 4    No change 1
(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: Secretarial Authority under provisions of Chapter 5, AR 635-200.
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090013725
______________________________________________________________________________

Page 1 of 3 pages