Applicant Name:  ?????

Application Receipt Date: 2010/05/28	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states in effect that he had a mental disorder and has received help from the Veterans Administration.  He feels that it was because of this disorder that he screwed up and was discharged from the Army.  He has been diagnosed with PTSD/TBI with seizures, has a knee problem, and sleep apnea.  During his 6-year Army career, he was a good Soldier who made a mistake and would like to correct it.  

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: 041222
Discharge Received: 			   Date: 050202   Chapter: 14-12c(2)    AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: C Co, 37th EN Bn, Fort Bragg, NC 

Time Lost: 43 days, AWOL (041104-041216), mode of return is unknown.

Article 15s (Charges/Dates/Punishment): 050113, wrongfully used marijuana (041117-041217), reduction to E-4, forfeiture of $907 for two months (suspended), 45 days of extra duty (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 021002    Current ENL Term: 4 Years  ?????
Current ENL Service: 	02 Yrs, 04Mos, 00Days ?????
Total Service:  		05 Yrs, 04Mos, 01Days ?????
Previous Discharges: 	RA 990819-021001/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 21E1P/Hvy Construction Eq Opr   GT: 89   EDU: HS Grad   Overseas: Kosovo, SWA   Combat: Iraq (030319-030915)
Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWOTEM GWOTSM, KCM, NATO MDL, ASR

V.  Post-Discharge Activity
City, State:  Hedgesville, WV
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 December 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—commission of a serious offense for testing positive for cocaine and marijuana on a urinalysis conducted on 17 December 2004 and for being AWOL for 40 days, with a general, under honorable conditions discharge.  He was advised of his rights. 
       The applicant declined his right 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 Army and waiver of further rehabilitative efforts.  
       
       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 carefully examining the applicant’s record of service during the period of enlistment under review and the issue and 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 a non-commissioned officer (NCO).  The applicant, as an NCO, 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 applicant contends that he made a mistake and would like to correct it.  However, at the time of discharge he was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment. 
       
       Furthermore, the analyst acknowledges the applicant's successful transition to civilian life and noted the diagnosis of PTSD outlined in the documents with his application.  However, in review of the applicant’s entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted.  The analyst concluded that just because someone is suffering from PTSD does not mean that they don't know the difference between right and wrong or that they do not have control over their behavior.  There are many Soldiers with the same condition that complete their service successfully.  
       
       Additionally, the analyst acknowledges the applicant's in service accomplishments as stated in his application.  However, the analyst did not find the said issue sufficiently mitigating to warrant an upgrade of the discharge under review.  
       
       Finally, the analyst noted the DD Form 2624 (Specimen Custody Document-Drug Testing) found in the applicant's official record shows 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 indicates the applicant went AWOL on 4 November 2004 and returned on 16 December 2004.  This would have given the unit commander probable cause to direct the urinalysis which was administered on 17 December 2004.  In all likelihood the test basis for the urinalysis 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.
       
       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: 23 July 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 214, VA Medical records which indicate the award of 70 percent service connected disability.

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: 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 AR20100015790
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