Applicant Name: ?????
Application Receipt Date: 2009/10/28 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant states that "he was falsely accused of cocaine usage; reason to suspect 72nd MP Detachment of unfair treatment. Due to mishandling of his outprocessing paperwork; which left him in debt with the federal government over three thousand dollars."
II. Were Proper Discharge and Separation Authority procedures followed?
Tender Offer: Yes, the applicant accepted the boards tender offer on 9 September 2010.
See Attachments: Legal Medical Minority Opinion Exhibits
III. Discharge Under Review
Unit CDR Recommended Discharge: Date: 050401
Discharge Received: Date: 050711 Chapter: 14-12c(2) AR: 635-200
Reason: Misconduct RE: SPD: JKK Unit/Location: 72nd Military Police Detachment, 76th Military Police Battalion, Fort Bliss, TX
Time Lost: Military confinement from (050606-050629) for a total of 24 days, as part of his punishment imposed from a Summary Court-Martial.
Article 15s (Charges/Dates/Punishment): 050124, wrongfully used marijuana on or about (040915); and wrongfully used marijuana on or about (041001); reduction to Private (E-1); forfeiture of $590.00 pay per month for two months; suspended, to be automatically remitted if not vacated before (050701); extra duty and restriction for 45 days and a Oral Reprimand (FG)
Courts-Martial (Charges/Dates/Punishment): 050606, Summary Court-Martial for breaking restriction on or about (050212); wrongfully used marijuana between on or about (050412-050512); disobeyed a lawful order from 1SG, a senior noncommissioned officer on or about (050408); disobeyed a lawful commander from 1LT, a superior commissioned officer on or about 050512); failed to go to his appointed place of duty x 5 (050511); (050329); (050220); (050219); (050201). He was sentenced to forfeit $823.00 pay and to be confined for 30 days.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 19
Current ENL Date: 010312 Current ENL Term: 5 Years ?????
Current ENL Service: 4 Yrs, 3 Mos, 6 Days ?????
Total Service: 4 Yrs, 3 Mos, 6 Days ?????
Previous Discharges: None
Highest Grade: E-4 Performance Ratings Available: Yes No
MOS: 31B10 Military Police GT: 93 EDU: HS Grad Overseas: Honduras/Southwest Asia Combat: Kuwait & Iraq (030409-040408)
Decorations/Awards: JSAM, NDSM, GWOTEM, GWOTSM, 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 1 April 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense; in that he wrongfully used marijuana on two separate occasions, with an under other than honorable conditions discharge. He was advised of his rights.
On 19 May 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 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's reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 16 June 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 applicants military records, the issue and documents he submitted, the analyst determined that the characterization of service is improper.
The analyst noted that the government introduced into the discharge packet the results of a biochemical test that was part of the applicants Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85. Use of this information mandates award of a fully honorable characterization of service.
Accordingly, the analyst recommends that the applicants characterization of service be upgraded to fully honorable. However, the analyst found that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.
Additionally, the analyst noted the applicant's issue that due to the mishandling of his outprocessing paperwork, it left him in debt with the federal government for over three thousand dollars. The Army Discharge Review Board is not empowered to restore former service member's pay or debt related issues. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in his discharge, he then may make an application to the Army Board for Correction of Military Records, utilizing a DD Form 149, which can be obtained online or from veterans assistance offices.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 13 September 2010 Location: Washington, DC
Did the Applicant Testify? Yes No
Counsel: None
Witnesses/Observers: None
Exhibits Submitted: The applicant submitted eleven documents in support of his personal appearance hearing.
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicants record of service during the period of enlistment under review and considering the analysts recommendation and rationale, the Board noted that the government introduced the results of a command directed urinalysis into the discharge process. This is limited use information as defined in AR 600-85. Use of this information mandates award of a fully honorable discharge. Accordingly, the Board voted to change the characterization of service to fully honorable. However, the board determined that the reason for discharge was fully supported by the record and voted not to change it.
IX. Board Decision
XI. Certification Signature
Board Vote: Approval Authority:
Character - Change 5 No change 0
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 AR20090019405
______________________________________________________________________________
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