Applicant Name:  ?????

Application Receipt Date: 2010/03/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant's counselor states that the veteran served 2 tours in Iraq and had no troubles until he injured himself and was sent to WTB.

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: 090916
Discharge Received: 			   Date: 091027   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: Company C, Warrior Transition Battalion, Madigan Army Medical Center, Tacoma, WA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080611, wrongfully used cocaine between on or about (080220-080304), reduction to the grade of SPC (E-4), forfeiture of $509.00 pay per month for 1 month, extra duty and restriction for 30 days (FG)

Article 15, 090309, engaged in sexual contact with a PFC, which was without permission of the said PFC on or about (080725), wrongfully communicated a threat to a PFC on or about (080725), stole US currency, military property, less than $500.00, the property of US Government on or about (080506), wrongfully used cocaine between on or about (081207-090107), forfeiture of $699.00 pay per month for two monhts, suspended, to be automatically remitted if not vacated before (090829), reduction to Private (E-1), extra duty and restriction for 45 days (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: Reenl/060518    Current ENL Term: 4 Years  ?????
Current ENL Service: 	3 Yrs, 5 Mos, 10 Days ?????
Total Service:  		9 Yrs, 0 Mos, 11 Days ?????
Previous Discharges: 	ARNG 001017-001112/NA
                                       ADT    001113-010409/HD
                                       ARNG 010410-040113/HD
                                       RA       040114-060517/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 11B1P Infantryman   GT: 103   EDU: GED Cert   Overseas: Southwest Asia   Combat: Iraq (050405-050716)
Decorations/Awards: AAM (3), GCMDL, NDSM, GWTSM, GWTEM, ICMw/CS, NCOPDR, OSR, AFRMw/M Device, CIB, 

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 15 September 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs; in that he tested positive for cocaine on (090803), 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 and submitted 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 a general, under honorable conditions discharge.   The Staff Judge Advocate forewarded the separation packet to the acting Commander, Headquarters, Fort Lewis, WA, (General Court-Martial Convening Authority) to obtain his decision whether to discharge the applicant under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, for misconduct-abuse of illegal drugs or continue processing the applicant through the physical evaluation board system in accordance with AR 635-200, paragraph 1-33, and AR 635-40. 
       
       On 1 October 2009, the General Court-Martial Convening Authority reviewed the information pertaining to the applicant and the Staff Judge Advocate recommendation that he be separated under the provisions of AR 635-200, Chapter 14-12c(2), by reason of misconduct-abuse of illegal drugs.  
       
       The General Court-Martial Convening Authority determined that the applicant's medical condition was not the direct and substantial contributing cause of the conduct underlying the recommendation for administrative separation and there are no other circumstances of the applicnat's case that warrant disability processing instead of further processing for administrative separation, and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. 
       
       The applicant received two General Officer Memorandum of Reprimands for suspicion of driving under the influence of alcohol and the other one for driving under the influence of alcohol, dated 21 February 2007 and 14 November 2007, both (Administrative).
       

       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 and the issue 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.  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. 
       
       Furthermore, the analyst noted that the DD Form 2624 (Specimen Custody Document-Drug Testing) found in the applicant's official record shows that the test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty.”  The commander directs an individual test for fitness for duty.  The commander has a suspicion that a Soldier is using a controlled substance, however, does not have probable cause.  The Limited Use Policy applies to this test basis, per AR 600-85. 
       
       However, the evidence of record contains a statement that indicate the applicant and his friend was drinking while at a park, which was not authorized.  This would have given the unit commander probable cause to direct the urinalysis.  Additionally, the applicant consulted with legal counsel, who would have informed him if the Limited Use Policy applied.  In view of the aforementioned, the analyst determined that the code on the DD Form 2624 was in all likelihood incorrect and should have been coded PO for “Probable Cause” instead of CO for “Competence for Duty.”  The analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.
       
       The analyst noted the applicant's issue that he served 2 tours in Iraq and had no troubles until he injured himself and was sent to WTB.  The analyst considered the applicant’s quality of service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently meritorious to warrant an upgrade to the characterization of service.  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: 8 November 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: AMVETS
                5717 S Tyler Street
                Tacoma, WA  98409

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 3 March 2010.

















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 AR20100011128
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