Applicant Name:  ?????

Application Receipt Date: 2009/08/13	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he was an outstanding Soldier for most of his enlistment. He has an Army Achievment Medal, as well as a Battalion Coin. He was the RTO for his company and completed a 6 month deployment to Egypt and upon his return made some horrible decisions. He feels that the decision was unjust considering what a good Soldier he was, but the new First Sgt, threw the book at him.

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: 000331
Discharge Received: 			   Date: 000524   Chapter: 14-12b       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKA   Unit/Location: Company A, 1st Battalion, 32nd Infantry, 10th Mountain Division (Light Infantry), fort Drum, NY 

Time Lost: AWOL x 2 for 61 days from (991105-991205) and (980727-980826). Mode of return is unknown.

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): 000209, Summary Court-Martial for absenting himself from his unit on 991105-991205, and wrongfully using marijuana between 990802-990902. He was sentenced to reduction to Private (E-1), confinement for 17 days. 

980929, Summary Court-Martial for absenting himself from his unit on 980727-980826; and violating a lawful general regulation by wrongfully consuming alcohol while under the age of 21 on or about 980915. He was sentenced to 30 days confinement.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 980320    Current ENL Term: 3 Years  ?????
Current ENL Service: 	2 Yrs, 0 Mos, 4 Days The net active service this period on the DD Form 214, block 12c is incorrect; should be: 2 Years, 0 Months, 4 Days.  The applicant has two periods of AWOL, which was not annotated on the DD Form 214, block 29, Time Lost.
Total Service:  		2 Yrs, 0 Mos, 4 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 110   EDU: GED Cert   Overseas: None   Combat: None
Decorations/Awards: AAM, ASR

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 31 March 2000, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12b, AR 635-200, by reason of a pattern of misconduct; in that he used marijuana twice, went AWOL twice and drunk alcohol while underage, with a general, under honorable conditions discharge.  He was advised of his rights. 
       
       The applicant waived 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 a general, under honorable conditions discharge. 
       
       On 9 March 2000, 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, 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, the issue and documents 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 wherein he feels that the decision was unjust considering what a good Soldier he was, but the new First Sgt, threw the book at him.  The analyst considered the applicant’s quality of service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently meritorious to warrant an upgrade to the characterization of discharge. 
       
       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.  
       
       Furthermore, the analyst noted that the DD Form 2624 (Specimen Custody Document-Drug Testing) found in the applicant's official record shows that the test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty.”  The commander directs an individual test for fitness for duty. 
       
       The commander has a suspicion that a Soldier is using a controlled substance, however, does not have probable cause.  The Limited Use Policy applies to this test basis, per AR 600-85.  However, the evidence of record contains a DA Form 4187 (Personnel Action) indicating the applicant went AWOL on 5 November 1999 and upon his return on 5 December 1999, the unit commander had an inspection based on the command/unit policy.  This policy is used to test individuals based on a commanders policy letter or SOP (i.e., individuals after 30 days leave, newly arrived personnel, re-tests of rejected previously collected specimens).
       
       Additionally, the applicant consulted with legal counsel, who would have informed him if the Limited Use Policy applied.  In view of the aforementioned, the analyst determined that the code on the DD Form 2624 was in all likelihood incorrect and should have been coded IO for “Inspection Other” instead of CO for “Competence for Duty.”  The analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.
       
       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: 9 June 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: The applicant submitted a copy of his Army Achievement Medal Certificate dated 11 April 1999.

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 AR20090013968
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