Applicant Name:  ?????

Application Receipt Date: 2010/08/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant request that his reentry eligibility (RE) code be changed from a 4 to a 3. He would also like to add how much he appreciate the board taking time to consider his request.   He has grown and learned so much from his mistakes he has made in the past. Everyone makes mistakes, and all he is asking for is a second chance for him to make a better tomorrow, today. He wishes to reenlist into the Army so he can live the right life, the life he feels he has grown accustom to, the Army made him stronger, smarter, and prepared for anything.  

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   Yes; however, the board did not receive a response from the applicant.

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 090527
Discharge Received: 			   Date: 090610   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: 554th Engineer Company, 92nd Engineer Battalion, Fort Stewart, GA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 090415, wrongfully used marijuana between on or about (090116-090217), larceny of a value of about $47.20, the property of AAFES on or about (090212), reduction to the grade of Private (E-1), forfeiture of $400.00 pay per month for two months, extra duty and restriction for 45 days (FG)

Article 15, 081008, wrongfully used marijuana between on or about (080721-080821), reduction to the grade of Private (E-1), forfeiture of $673.00 pay per month  for one month, forfeiture of $673.00 pay per month for one month, suspended, to be automatically remitted if not vacated before (090406) 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:  19
Current ENL Date: 080102    Current ENL Term: 4 Years  The applicant required an administrative waiver at the time of enlistment, which was approved on (071203).
Current ENL Service: 	1 Yrs, 5 Mos, 9 Days ?????
Total Service:  		1 Yrs, 5 Mos, 9 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 21K10 Plumber   GT: 92   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

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 14 May 2009, 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 marijuana x 2 between (090116-090217) and between (080721-080821), with a general, under honorable conditions discharge.  He was advised of his rights.  On 27 May 2009, 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 29 May 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. 
       
       The record contains a Military Police Report in reference to the applicant's offense of larceny of AAFES property dated 12 February 2009. 

       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:  
       Analyst Issue:  (2)  After a careful review of all the applicant’s military records, and the issue he submitted, the analyst determined that the characterization of service is improper. 
       
       The analyst noted that the government introduced into the discharge packet the results of a command directed competence for duty (i.e. CO - fitness for duty) biochemical test which was administered on 21 August 2008.  This is limited use information as defined in AR 600-85.  Use of this information mandates the award of a fully honorable characterization of service.  
       
       The record shows that on 21 August 2008, the applicant was given a command directed urinalysis (CO) and the applicant tested positive for marijuana.  On 8 October 2008, the applicant accepted non-judicial punishment for wrongfully using marijuana based on that urinalysis. His punishment for this offense was reduction to E-1, forfeiture of $673.00 per month for 1 month and 45 days of extra duty.
       
       If the test basis for the urinalysis was CO, as stated on the collection sheet, then the Article 15 was improper.  There is no indication in the Chapter paperwork that the command recognized that the “Command Directed Urinalysis” could not be used as the basis for the Article 15.  Nor is there any indication that the command believed the urinalysis was improperly coded “CO.”  Further, no conclusions inconsistent with the “CO” coding can be drawn from the test.  There are also no CID reports or counseling statements that shed any light on the reason the urinalysis was authorized.  
       
       Therefore, the analyst believes the urinalysis was properly coded “CO,” the Article 15 was improperly based on the limited use evidence, and the discharge was improperly characterized given the introduction of the limited use evidence in the Chapter paperwork.  The analyst recognizes, however, the question whether the urinalysis was properly coded is a question of fact for the ADRB to determine given the contrary conclusions that could be drawn by the command’s treating the urinalysis as though it was not limited use evidence.  The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded.  
       
       Accordingly, the analyst recommends to the board that partial relief be granted in the form of an upgrade of the applicant’s characterization of service to fully honorable.  
       
       (1)  The issue is rejected.  The analyst noted the applicant's issue that he would like his narrative reason for separation and the reentry eligibility (RE) code changed from a 4 to a 3.  The analyst found no mitigating factors that would merit a change to the narrative reason for separation nor the reentry eligibility (RE) code on the applicant's DD Form 214.  
       
       The applicant was discharged under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct drug abuse  with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct Drug Abuse” and the separation code is "JKK" with a corresponding reentry eligibility (RE) code of "4." 
       
       Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, to include the reentry eligibility (RE) code entered in block 27 will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  
       
       In view of the foregoing, the analyst determined that the narrative reason for separation and the reentry eligibility (RE) code was both proper and equitable and recommends to the Board to deny relief.  (See response to issue (2) above.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 7 March 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 13 August 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 noted that the government introduced the results of a command directed urinalysis into the discharge process.  This is limited use information as defined in AR 600-85.  Use of this information mandates award of a fully honorable discharge.  Accordingly, the Board voted to change the characterization of service to fully honorable.  However, the board found that the reason for discharge was fully supported by the record 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: 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 AR20100021656
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