Applicant Name:  ?????

Application Receipt Date: 2010/04/08	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant, states in effect, that he needs an upgrade of his discharge to honorable in order to get his GI Bill, further he states that it has been over six months since his discharge.  He reenlisted for a second term of service while deployed to Iraq.  He also asks for the narrative reason for his discharge to be changed because this was not the reason for which he was discharged.

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: 090903
Discharge Received: 			   Date: 090924   Chapter: 14-12c(2)    AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: 89th Chemical Co, Fort Hood, TX 

Time Lost: 134 days total.  AWOL on four occasions, first time for 1 day (060716-060716), second time for 81 days (070813-071101), third time for 22 days (090325-090415), fourth time for 6 days (090918-090923), mode of return for all AWOL periods is unknown.  He was also confined by military authorities for 24 days (090720-090812).  

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): 090720, wrongful appropriation (090124) of 2009 Toyota Corolla, valued at about $18,000 , reduction to E-1, confinement for 30 days, and forfeiture of pay for one month (SCM)

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: 081202    Current ENL Term: 5 Years  ?????
Current ENL Service: 	00 Yrs, 09Mos, 22Days ?????
Total Service:  		03 Yrs, 02Mos, 29Days ?????
Previous Discharges: 	RA 061216-081201/HD (Immediate Reenlistment)
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 74D10/Chemical Ops Spc   GT: 94   EDU: HS Grad   Overseas: SWA   Combat: Iraq (080208-090118)
Decorations/Awards: ARCOM, NDSM, GWOTSM, ICM w/CS, ASR, OSR

V.  Post-Discharge Activity
City, State:  Clarksville, TN
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 3 September 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct—commission of a serious offense for wrongfully appropriation of a POV (090124), and testing positive for marijuana (090429), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 8 September 2009, 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 Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed elimination action and recommended approval with a general, under honorable conditions discharge.  
       
       On 10 September 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.
       
       The record contains an MP Report dated 10 March 2009.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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, however, a general, 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 the documents submitted with the application, the analyst determined that the discharge was both proper and equitable.  
       
       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 special trust and confidence placed in 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 the misconduct diminished the quality of service below that meriting a fully honorable discharge.  
       
       The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review which included a combat tour.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct which included misappropriation of a privately owned vehicle valued at about $18,000 and wrongfully testing positive for marijuana.  
       
       The applicant contends that the narrative reason for his discharge should be changed because that is not the reason for which he was separated.  However, the record shows that the applicant was separated because he tested positive for illegal drugs and for wrongfully appropriating a privately owned vehicle, under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK."  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.  
       
       Furthermore, the analyst noted the applicant’s issue about his request for an upgrade because more than six months have elapsed since his discharge.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges based on the passage of time.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
       
       Further, eligibility for veteran's benefits to include educational benefits under the Post 9-11 and Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       Therefore, 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: 19 January 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 214, VA denial letter, DFAS letters, and DD Form 149.

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.   However, the Board found that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as “AR 635-200, paragraph 14-12c(2)”, block 26 separation code as “JKK”, block 27, reentry code as “4”, and block 28, narrative reason for separation as "Misconduct (Drug Abuse)."  In view of these errors, the Board voted to administratively change block 25, separation authority to “AR 635-200, paragraph 14-12c”, block 26, separation code to “JKQ”, block 27, reentry code to “3, and block 28, narrative reason for separation to "Misconduct (Serious Offense)" as approved by the separation authority.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable and voted not to change it. 
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 4    No change 1
(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: Misconduct (Serious Offense)
Other: Change authority to AR 635-200, PARA 14-12c with corresponding SPD Code of JKQ.										
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 AR20100012674
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