Applicant Name:  ?????

Application Receipt Date: 2010/07/07	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "I am writing this letter in reference to my Military Discharge.  As you have on record, I enlisted in the Army in 2000.  After serving my first years honorably, I made the decision to make the Army my life career and re-enlisted.  While I was station in Germany I married a girl I had met there and my son was later born while I was serving in Iraq.  After my service in Iraq, I was sent to Ft. Leavenworth, Kansas.  It was there that my life began to unravel.  After only two months at Ft. Leavenworth, my wife decided that she wanted to go back to Germany.  I pleaded with her to reconsider, asked for some time, but at this point she told me that she wanted a divorce.  I requested and was granted an Emergency Leave and flew to Germany to be with my wife and son, hoping to convince her to return.  As required, I returned to Ft. Leavenworth and subsequently received divorce papers.  My wife had taken my son, the most important person in my life, and left me.  I could not get any more leave time from the Army and them made the stupid and foolish choice to smoke pot.  The result was my 'Less-Than-Honorable discharge from the military and all my hope for an Army career.  Please understand and know that I write this not as an excuse for my action, but as an explanation.  I know that my choice was wrong and foolish, but at the time I was not thinking rationally and could only focus on finding a way to be with my family."

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: 050210
Discharge Received: 			   Date: 050315   Chapter: 14-12c       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: HHC, 705th MP Bn, Fort Leavenworth, KS 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 041026, Wrongfully having sexual intercourse with another Soldier who was not his wife; reduction to E2; forfeiture of $669.00 pay per month for one month (suspended); and extra duty for 14 days, (FG).

050119, Wrongful use of marijuana between (041201-041215), reduction to E1; extra duty for 45 days; and restriction for 45 days (suspended), (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 030524    Current ENL Term: 03 Years  ?????
Current ENL Service: 	01 Yrs, 09Mos, 22Days ?????
Total Service:  		04 Yrs, 11Mos, 22Days ?????
Previous Discharges: 	RA-000324-030523/HD
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 92Y10/Unit Supply Specialist   GT: 113   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (030211-030805)
Decorations/Awards: AAM, GWOTSM, GWOTEM, ASGM, NDSM, ASR, OSR


V.  Post-Discharge Activity
City, State:  Nutley, NJ
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 10 February 2005, 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 having wrongfully used marijuana between (041201-041215), with an under other than honorable conditions discharge.  He was advised of his rights.  
       
       On 16 February 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions, and submitted a statement in his own behalf which was not found in the available records.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed discharge action and recommended approval with an under other than honorable conditions discharge.
       
       On 2 March 2005, the applicant unconditionally waived his right to an administrative separation board and revoked any conditional waiver that he had previously submitted .
       
       On 9 March 2005, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.
       
       The applicant's record contains a CID Report, dated 19 January 2005.

       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, 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 during the period of enlistment under reveiw, the issues, and documents submitted with the application, the analyst found several mitigating factors which would merit a partial upgrade of the applicant's characterization of service to general, under honorable conditions.  
       
       This recommendation was made after full consideration of his faithful and honorable service, as well as the former Soldier’s record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service is too harsh, and as a result it is inequitable.  While the applicant's misconduct is not condoned, the overall length and quality of the applicant's service to include his combat service mitigated the discrediting entries in his service record.
       
       
       
       
       
       
       The applicant contends that his reason for smoking pot was due to a family issue, however, the analyst determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.
       
       Furthermore, 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.
       
       Accordingly, the analyst recommends that the applicant’s characterization of service be partial upgraded to general, under honorable conditions.  However, the analyst determined the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.
       
       Additionally, the analyst noted that the DD Form 2624 (Specimen Custody Document-Drug Testing) found in the applicant's official record shows that 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 contains several sworn statements that indicate the applicant and other Soldiers had wrongfully used marijuana.  This would have given the unit commander probable cause to direct the urinalysis.  Additionally, the applicant consulted with legal counsel, who would have informed him if the Limited Use Policy applied.  In view of the aforementioned, the analyst determined that the code on the DD Form 2624 was in all likelihood incorrect and 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.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 6 April 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel:  [ redacted ]

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, Letter from County of [ redacted ] Veterans Service Agency, self-authored letter, 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 and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh and as a result, it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board determined that the reason for discharge was both proper and equitable and voted not to change it.








        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
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 AR20100018463
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