Applicant Name:  ?????

Application Receipt Date: 2010/06/09	Prior Review:     Prior Review Date: 090923/Records Review    

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states in effect that he would like an upgrade of his discharge, allow him to receive all benefits owed to him from his service, such as Post 9/11 GI Bill, pay him his TDY for when he was on a ship for 32 days at $208.00 per day, for a total of $6,656.00, and return the money which was taken from his pay for the equipment that was lost in the total amount of $126.77.


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: 040709
Discharge Received: 			   Date: 040806   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKK   Unit/Location: HHC, 2/3d Avn Regt, Hunter Army Airfield, GA 

Time Lost: The DA Form 2-1, item 21; indicates that the applicant went AWOL for 4 days from 030111-030114; and the mode of return is unknown.  However, the DD Form 214, block 29 does not show the lost time, and there is no documentation to support the DA Form 2-1 annotation in the available records. 

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

Courts-Martial (Charges/Dates/Punishment): 040123, Summary Court-Martial-for wrongful use of cocaine, between on or about 031114-031118; reduction to the grade of Private (E-2); confinement for 30 days.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 020930    Current ENL Term: 03 Years  ?????
Current ENL Service: 	01 Yrs, 10Mos, 07Days ?????
Total Service:  		03 Yrs, 05Mos, 28Days ?????
Previous Discharges: 	USAR-010209-020929/HD
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 63B10/Light Wheel Vehicle Mech   GT: 117   EDU: 13 Years   Overseas: Southwest Asia   Combat: (Kuwait/Iraq (030126-030909)
Decorations/Awards: NDSM, GWOTEM, ASR

V.  Post-Discharge Activity
City, State:  Willard, NC
Post Service Accomplishments: None Listed







VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 9 July 2004, 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-commission of a serious offense; in that he wrongfully used cocaine, 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, 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 13 July 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. 
       
       The applicant's record contains a CID Report of Investigation, dated 5 December 2003.

       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, the documents, and the issues submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The applicant, by violating the Army's policy not to possess or use unauthorized/controlled substances 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.  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 about not having received legal counsel and supporting documents.  However, his records show that on 25 July 2004, the applicant stated in a memorandum that he had been advised by his consulting counsel of the basis for the contemplated action to involuntary separate him for commission of a serious offense under Chapter 14, paragraph 14-12c, AR 600-200.  The document was authenticated by the applicant’s signature.  The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       
       
       
       
       
       
       
       The analyst also noted the applicant's issue of unlawfully influencing the action of the court and former jeopardy.  However, Chapter 14, paragraph 14-2(f), states that Commanders will consider Soldiers meeting the criteria of section III (Acts or Patterns of Misconduct) of this chapter and convicted by court-martial, but not sentenced to a punitive discharge, for administrative separation under section III, when the underlying misconduct warrants separation.  Records show that separation action was initiated against the applicant by his chain of command under the provisions of Chapter14, paragraph 14-12c, for wrongfully using cocaine.
       
       Furthermore, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or 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.
       
       Additionally, the analyst noted the applicant's issue about receiving his TDY pay and the money taken from his pay for equipment that was lost.  However, these corrections do not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 
       
       In view of the foregoing, 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: 24 January 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: [ redacted ]

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293, self-authored letter (3 pages), statement in support of claim, DD Form 4856 (4), Summary Courts-Martial fact sheet (2 pages), DD Form 4187 (2), statement of charges/cash collection voucher, Department of the Army Report of Survey, copy of prior Army Discharg Review Board-Case Report and Directive, dated 23 September 2009, and DD Form 214 for the period of service under review. 

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, 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 AR20100016090
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