Applicant Name: 

Application Receipt Date: 2009/10/07	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: 090707
Discharge Received: 			   Date: 090723   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: F Troop, 2-3 Armored Cavalry Regt, Fort Hood, TX 

Time Lost: AWOL, for 2 days (071009-071010), surrendered.

Article 15s (Charges/Dates/Punishment): 090610, at or near Fort Hood, TX between on or about 8 May 2009 and 11 May 2009, the applicant wrongfully used cocaine and MDMA; reduction to Private (E-1), forfeiture of $699.00 pay per month for two months, suspended, to be automatically remitted if not vacated before 10 October 2009, extra duty for 45 days, and restriction for 45 days (FG).

071017,  at or near Fort Hood, TX between on or about 14 July 2007 and 13 August 2007, the applicant wrongfully used THC, a substance found in marijuana; at Fort Irwin, CA, on or about 30 June 2007, through negligence, discharge a .50 caliber service rifle in the living area of FOB Seattle, under circumstances such as to endanger human life;; reduction to Private (E-1), forfeiture of $650.00 pay per month for two months, suspended, to be automatically remitted if not vacated before 17 January 2007, extra duty for 45 days, and restriction for 21 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 060608    Current ENL Term: 3 Years  18 weeks
Current ENL Service: 	03 Yrs, 01Mos, 16Days ?????
Total Service:  		03 Yrs, 01Mos, 16Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 19D10/Cavalry Scout   GT: 101   EDU: HS GRAD   Overseas: SWA   Combat: Iraq (071025-090107)
Decorations/Awards: ARCOM, NDSM, GWOTSM, ICM W/CS, ASR, OSR

V.  Post-Discharge Activity
City, State:  Evansville, IN
Post Service Accomplishments: None listed by the applicant.





VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 7 July 2009, 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 wrongfully using cocaine and MDMA between on or about 8 May 2009 and 11 May 2009, and wrongfully using marijuana between on or about 14 July 2007 and 13 August 2007, of which on both occasions he received a Field Grade Article 15; also, the applicant received a Field Grade Article 15 on 17 October 2007 for endangering human life with a .50 caliber service rifle; 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, voluntarily waived consideration of his case by an Administrative Separation Board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions 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 13 July 2009, the separation authority approved the conditional waiver request, 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 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 a careful review of all the applicant’s military records during the period of enlistment under review and the issues and documents submitted with the application, the analyst found no mitigating factors that would merit a change to the applicant's narrative reason for discharge.  The analyst noted the applicant's issues; however, the narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 14, Paragraph 14-12c(2), 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.  Furthermore, 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.   Further, the analyst noted all the applicant's issues:  1) The record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the applicant was entitled to an enlistment bonus.  As for his contention that he was exempt from deployment due to being an only child, and that he did not receive his final pay, this request does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding these matters.  An application for that Board is enclosed.  2)  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.  Further, the evidence of record shows that the command provided drug rehabilitation couseling for the applicant, and attempted to assist him in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.  3) The record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the CID persuaded the applicant to sign a confession.  4) The record does not support the applicant's contention that he was ever processed for separation under the provisions of AR635-200, Chapter 5-17.
        In view of the foregoing, the analyst determined that the reason for discharge was both proper and equitable and recommends to the Board to deny relief.
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 2 December 2009         Location: Washington, D.C.

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: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090017792
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