Applicant Name:  ?????

Application Receipt Date: 2010/04/09	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he was given a command directed urinalysis, which came back positive. His characterization of service was based on the results of the urinalysis. Three drug tests were given in three days. The 1st was a 100% platoon urinalysis test, the second was a 100% commander required urinalysis, which was what his results were based upon. The 3rd was a probable cause blood test, which he was one of many that was selected. The commander was not authorized a "military search warrant" from the installation commander; therefore, this was against military policy. He is a few hours away from his degree and needs financial assistance to finish. If this is changed for an honorable, he will not seek legal counsel. It is in both of our best interest that this be resolved in a timely manner.  

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: 091130
Discharge Received: 			   Date: 091222   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: Company A, 725th Brigade Support Battalion, 4th Brigade (Airborne), 25th Infantry Division, FOB Sharana, Afghanistan APO AE 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 091204, wrongfully used marijuana between on or about (090930-091031), reduction to the grade of Private (E-1), forfeiture of $699.00 pay per month for two months, 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:  24
Current ENL Date: 080512    Current ENL Term: 3 Years  21 weeks
Current ENL Service: 	1 Yrs, 7 Mos, 22 Days ?????
Total Service:  		1 Yrs, 7 Mos, 22 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 88M1P Motor Transport Oper   GT: 123   EDU: HS Grad   Overseas: Southwest Asia   Combat: Afghanistan (090305-091209)
Decorations/Awards: NDSM, GWTSM, NATOMDL, AFCMDLw/CS, ASR, OSR, CAB

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: The applicant stated in his issue that he is a few hours away from his degree; however, he did not submit any supporting documents.





VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 30 November 2009, 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 wrongfully used a controlled substance, with a general, under honorable conditions discharge.  He was advised of his rights.  On 30 November 2009, the applicant declined the opportunity to consult 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 5 December 2009, 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 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 he was given a command directed urinalysis, which came back positive.  The second test was a 100% commander required urinalysis, which was what his results were based upon.  His characterization of service was based on the results of the urinalysis.  The applicant's positive urinalysis test was a result of the command’s random urine testing program to maintain good order and discipline within the unit. 
       
       Such random testing has been upheld by civilian and military courts as lawful and does not violate the US Constitutional protections against unreasonable search and seizure, under the Fourth Amendment, and self-incrimination, under the Fifth Amendment nor does it violate Article 31 of the Uniform Code of Military Justice.  In addition, military orders to produce a urine sample have been upheld in court as both legal and lawful and essential to military discipline. 
       
       The applicant further contends that he is a few hours away from his degree and needs financial assistance to finish.  Eligibility for veteran's benefits to include educational benefits under the 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 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: 7 January 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 2 April 2010, and a self authored statement undated.

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 AR20100013014
______________________________________________________________________________


Page 1 of 3 pages