Applicant Name:  ?????

Application Receipt Date: 2010/04/13	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he is requesting that his discharge be upgraded, because there are many federal and government jobs that he qualify for. If an employer questions the nature of his discharge and ask why, it could hurt his chances on getting hired. He is not a bad person, he just made a bad decision and that decision he made doesn't say who he is as a person. He has never been in any trouble his seven years while serving in the Army or in his life. He still would like to serve his country in some way since he is not in the Army any more. He further states that his discharge was inequitable because it was based on one  isolated incident in seven years of service with no other adverse action. It was a tough time in his life then. He had lost his E-5 strips, going through a divorce, and facing a MEB board, all of this which was within two years of each other.  

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: 040830
Discharge Received: 			   Date: 041124   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: HQ & HQ Company, 2nd Battalion, 2nd Infantry Regiment, APO AE Germany 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 040512, wrongfully used marijuana between on or about (040109-040209), reduction to the grade of Private (E-1), forfeiture of $597.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated before (041112), restriction and extra duty for 45 days (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: Reenl/020312    Current ENL Term: 4 Years  ?????
Current ENL Service: 	2 Yrs, 8 Mos, 13 Days ?????
Total Service:  		7 Yrs, 0 Mos, 13 Days ?????
Previous Discharges: 	RA 971112-020311/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 11B14C200 Infantryman   GT: 105   EDU: HS Grad   Overseas: Germany (980308-991230& 020711-041124)   Combat: None
Decorations/Awards: AAM, GCMDL, NDSM, GWTSM, KCMDLw/BSS, NATOMDL, ASR, OSR

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 30 August 2004, 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 tested positive for marijuana on a urinalysis administered on (040209), 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, requested 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 reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  The evidence of record further shows that the applicant was undergoing a Medical Evaluation Board (MEB), while he was also being administratively discharge under the provisions of Chapter 14, AR 635-200 by reason of misconduct-commission of a serious offense for testing positive for marijuana.  Chapter 1, paragraph 1-33(2)e, AR 635-200, states that the authority of the General Court Martial Convening Authority (GCMCA), will determine whether a case is to be processed through medical disability channels or under the administrative separation provisions and it will not be delegated. 
       
       It appears that the GCMCA determined that the applicant's separation action would not be processed though medical disability channels and returned it to his command for appropriate action.  However, the document is not part of the available record and the analyst presumed government regularity in the discharge process.  On 17 November 2004, 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 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 a careful review of all the applicant’s military records, the analyst determined that the discharge is improper.  
       
       The evidence of record shows that the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and had over 6 years of total active and reserve military service at the time of initiation of separation action.  The analyst noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board.  The analyst determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  
       
       In view of the foregoing, the analyst recommends to the Board that relief be granted in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority. 
       
       
       
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 12 January 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 1 April 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 and is improper.  The evidence of record shows that the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and had over 6 years of total active and reserve military service at the time of initiation of separation action.  The Board noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board and did not waive it.  The Board determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 5    No change 0
(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: Secretarial Authority under the provisions of Chapter 5-3, AR 635-200, with a corresponding separation program designator (SPD) code of JFF.
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 AR20100012838
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