Applicant Name:  ?????

Application Receipt Date: 2009/12/23	Prior Review:     Prior Review Date: 080822/Upgraded to GD 

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states in effect that:  (1) His discharge is inequitable because of his meritorious overall period of service, (2) Discharge was based on a few and isolated incidents, (3) No treatment was provided to the applicant for his drug problem, (4) Post service accomplishments, (5) Wants reason change to medical.

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: 070202
Discharge Received: 			   Date: 070301   Chapter: 10    AR: 635-200
Reason: In Lieu of Trail by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHS, 1-77 FA Bn (MLRS), Fort Sill, OK 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None in file.  However, the record shows the applicant was charged as a PVT/E-1 which would mean that he had been reduced by UCMJ action which is not contained in the record.

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 021107    Current ENL Term: 4 Years  ?????
Current ENL Service: 	04 Yrs, 03Mos, 25Days ?????
Total Service:  		08 Yrs, 08Mos, 27Days ?????
Previous Discharges: 	ARNG 980605-991206/HD
                                       IADT 990509-990716/UNC (Concurrent Service)
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 68W1-/Health Care Spc   GT: 129   EDU: HS Grad   Overseas: SWA   Combat: Kuwait (050913-060715)
Decorations/Awards: ARCOM, AAM, AGCM, GWOTEM, GWOTSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Muskegon, MI
Post Service Accomplishments: BA in Psychology from University of Michigan, successful reahabilitation, enrolled in Surgical Technician program at Baker College.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 30 January 2007, the applicant was charged with wrongful use of cocaine on two occasions (061111-061114 and 070102-070105).  On 01 February 2007, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  Further, the applicant indicated he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant submitted a statement in his own behalf.  
       
       The unit and battalion commanders recommended approval with a general under honorable conditions discharge.  The brigade level commander recommended approval with an under other than honorable conditions discharge.  
       
       On  20 February 2007, the separation authority approved the discharge with a characterization of service of under other than honorable conditions. 
       
       On 22 August 2008, the Army Discharge Review Board upgraded the applicant's characterization of service to general, under honorable conditions.  The Board determined the reason for discharge was proper and equitable.
       
       The file contains a CID report dated 18 January 2007.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, and 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 evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  He was given an under other than honorable conditions discharge which was later upgraded by the Army Discharge Review Board to a general, under honorable conditions discharge.
       
       The analyst noted that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.  
       
       Issue (1) is rejected.  The analyst acknowledges the applicant’s in-service accomplishments as shown in his service records; however, his discharge and characterization of service 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 service below that meriting a fully honorable discharge. 
       
       Issue (2) is rejected.   The analyst noted the applicant’s issue that there were only a few and isolated incidents; however, the discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. 
       
       Issue (3) is rejected.  Army regulation 600-85 stipulates that illegal drug use is grounds for disciplinary action under the Uniform Code of Military Justice and/or the initiation of administrative separation proceedings for illegal drug abuse.  The unit commander determined the best course of action was to pursue the discharge because of the applicant’s addiction for the benefit of the unit and the Army.  
       
       Issue (4) is rejected.  The Applicant contends that since leaving the Army, he has graduated from college, has been successfully rehabilitated, and continues to pursue his education.  The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.  
       
       The analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined with the application and in the documents with the application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted.
       
       Issue (5) is rejected.  The record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  The applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  The narrative reason specified by Army Regulations for a discharge under this Chapter is "In Lieu of Trial by Court-Martial” and the separation code is "KFS."  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 and separation code, entered in block 26 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.  
       
       In view of the foregoing, the analyst determined 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: 21 June 2010         Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: Mr. Terrence E. Dean
1925 Shady Oak Drive
Muskegon, MI  49445

Witnesses/Observers: Applicant's spouse. 

Exhibits Submitted: The applicant's counsel provided the enclosed legal arguments and supporting documents as stated in items 8 and 14 of DD Form 293.  A total of 155 pages of documents for the Board's consideration. Two letters of support and a copy of his Bachelor of Arts degree were provided to the Board as additional documentation.







VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA






























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 AR20100000442
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