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ARMY | DRB | CY2009 | AR20090021852
Original file (AR20090021852.txt) Auto-classification: Denied
Applicant Name:  ?????

Application Receipt Date: 2009/12/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that during his time in the military he developed a drug problem He left without permission and received a drug charge in the state of California. He got arrested on March 25, 2006, and has been sober since. Since his release from the Army, He has held the same job and worked his way into the company. He completed his probation above expectations and completed probation in April, and petitioned the court to have his charges dismissed, which was granted. He was a good Soldier and loved the military and deeply regret the mistakes he has made. He feels that he has shown proof that he is rehabilitated from the issues that led to his discharge.

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: 060918
Discharge Received: 			   Date: 061026   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: A Company, 3rd Battalion, 8th Cavalry Regiment, 3rd Heavy Brigade Combat Team, 1st Cavalry Division, Fort Hood, TX 

Time Lost: AWOL x 3; (051101-051104) for 4 days, returned to his unit; AWOL (060103-060202) for 30 days, mode of return is unknown; AWOL (060203-060816) for 194 days, mode of return is unknown; Military confinement (060920-061013) for 24 days.  Total time lost was 252 days.

Article 15s (Charges/Dates/Punishment): 051205, AWOL from (051101-051105), reduction to Private (E-1), forfeiture of $617.00 pay per month for 2 months, both suspended, to be automatically remitted if not vacated before (060305), extra duty and restriction for 15 days (FG)

Courts-Martial (Charges/Dates/Punishment): 060920, Summary Court-Martial for AWOL from (060103-060817), reduction to the grade of Private (E-1); forfeiture of $848.00 pay and confinement for 30 days.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 050414    Current ENL Term: 3 Years  16 weeks
Current ENL Service: 	0 Yrs, 10 Mos, 1 Days ?????
Total Service:  		0 Yrs, 10 Mos, 1 Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: The applicant stated in his issue that since his release from the Army, he has held the same job and worked his way into the company.  He completed his probation above expectations and completed probation in April.  He has petitioned the court to have his charges dismissed, which was granted..

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 18 September 2006, 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 went AWOL from (060103-060817), tested positive for methamphetamines on (051212) and tested positive for marijuana and cocaine on (060103), 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 commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  On 20 September 2006, 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, and the issue and document submitted with the application, the analyst found no mitigating factors which 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 that during his time in the military he developed a drug problem and left without permission and also received a drug charge in the state of California.  The record of evidence does not demonstrate that the applicant sought relief from his positive drug test, which he was counseled for or through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Further, he has provided no evidence that he should not be held responsible for his misconduct. 
       
       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: 22 September 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 3 December 2009 and a copy f Minute Oder from the Superior Court of the State of California, County of Orange, dated 10 August 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 AR20090021852
______________________________________________________________________________


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