Applicant Name:  ?????

Application Receipt Date: 2009/11/13	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his discharge was based on a failed third urinalysis in over 48 months of service with no other adverse action.  He was not offered counseling after the first failed urinalysis and felt that counseling at the time would have prevented his subsequent actions. At no time was he offered any type of rehabilitation in a program, inpatient or outpatient. His actions was a result of the E-5 position he was in as an E-1 and an ultimatum to get discharged to keep his family together. He has been drug free for many years and strive to be a good member of his community. He has spoken with Army and National Guard recruiters, who has said that they would be willing to help him reenlist if his discharge could be upgraded.

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: 001013
Discharge Received: 			   Date: 001117   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: A Battery, 1st Battalion, 82nd Field Artillery, 1st Cavalry Division Artillery, Fort Hood, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 991011, wrongfully used marijuana between on or about (990829-990929); forfeiture of $484.00 pay per month for two months;  and 45 days restriction; both suspended, to be automatically remitted if not vacated by (000510); reduction to Private (E-1); and 45 days of extra duty (FG)

Article 15, 000929, wrongfully used marijuana between on or about (000214-000314); and wrongfully used marijuana between on or about (000505-000605); reduction to Private (E-1); forfeiture of $502.00 pay per month for two months; extra duty and restriction for 45 days; suspended, to be automatically remitted if not vacated before (010422); (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: 980128    Current ENL Term: 3 Years  ?????
Current ENL Service: 	2 Yrs, 9 Mos, 20 Days ?????
Total Service:  		4 Yrs, 0 Mos, 18 Days ?????
Previous Discharges: 	ARNG 961030-970111/NA
                                       ADT    970112-970602/UNC
                                       ARNG 970603-980127/HD
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 92A10 Automated Logistical Spec   GT: 96   EDU: GED Cert   Overseas: None   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: The applicant stated in his issue that he has been drug free for many years and striving to be a good member of his community. 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 5 October 2000, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c, AR 635-200, by reason of serious misconduct; in that he tested positive three times for marijuana, with a general, under honorable conditions discharge.  He was advised of his rights. 
       
       On 13 October 2000, the unit commander subsequently recommended separation from the service with issuance of an under other than honorable conditions discharge and waiver of further rehabilitative efforts.  On 24 October 2000, 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 honrable conditions discharge and did not submit a statement in his own behalf. 
       
       The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge, and that the conditional waiver be approved.  
       
       On 30 October 2000, the separation authority waived further rehabilitative efforts; approved the conditional waiver 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 carefully examining the applicant’s record of service during the period of enlistment under review, the issue and document 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.  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.  
       
       The applicant contends that he was 1) not offered counseling after the first failed urinalysis and felt that counseling at the time would have prevented his subsequent actions; 2) at no time was he offered any type of rehabilitation program, inpatient or outpatient; and 3) that his action was a result of the E-5 position he was in as an E-1 and an ultimatum to get discharged to keep his family together.  
       
       All three issues are rejected.  The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of nonjudicial punishment.  The applicant failed to respond appropriately to these efforts.  The command made an assessment of the applicant's potential for becoming a fully satisfactory soldier and as the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.
       
       Further, the applicant had many legitimate avenues through which to obtain assistance or relief (i.e. Chaplain, Army Community Services, Family Assistance Program), without committing the misconduct, which led to the separation action under review.
       
       Additionally, 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. 
       
       In view of the foregoing, 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: 30 August 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 4 October 2009 and a character reference letter dated 1 October 2009.

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 AR20090020893
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