Applicant Name:  ?????

Application Receipt Date: 2010/10/29	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: Through counsel, the applicant states, that the applicant tested positive for marijuana on 3 January 2007.  The drug test cannot be found.  The applicant was given a summary court martial hearing on 14 March 2007 and continued to serve his country.  He tested positive for marijuana and amphetamines on 4 December 2007 and was deployed to Iraq on 8 December 2007.  He was pressured to waive his right to counsel and a hearing.  The applicant received a summary court martial on 4 March 2008 and was punished by forfeiture of pay for two months and 45 days extra duty.  The applicant was not discharged; he served in Iraq, went on leave from 15 September 2008 through 9 October 2008 and continued to serve in Iraq until 23 February 2009.   A discharge of general, under honorable conditions is inequitable; after completing his service in Iraq and returning to the United States.  

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: 090709
Discharge Received: 			   Date: 090812   Chapter:   14-12c(2)    AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: Headquarters and Headquarters Company, 1st Battalion, 27th Infantry Regiment, 2nd Stryker Brigade Combat Team 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080312, wrongful use of d-amphetamine (071131 – 071204), wrongful use of marijuana (071122 - 071204) reduction to E-1, forfeiture of $337.00 pay per month, for 2 months, extra duty for 45 days, restriction for 45 days, to the limits of place of duty, place of worship, dining facility, medical facility, and barracks, (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: 050922    Current ENL Term: 4 Years  ?????
Current ENL Service: 	 3  Yrs, 10  Mos, 21 Days ?????
Total Service:  		 3  Yrs, 10 Mos,  21 Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 68W10 Health Care Specialist   GT: 121   EDU: HS Grad   Overseas: SWA   Combat: Iraq (071208 - 090228)
Decorations/Awards: AAM, NDSM, GWOTSM, ICM w/CS, ASR, OSR x 2

V.  Post-Discharge Activity
City, State:  Howell, MI
Post Service Accomplishments: None




VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 9 July 2009, 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 wrongful use of marijuana (071104 - 071204), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 9 July 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, 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 intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  
       
       On 24 July 2009, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge 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 the applicant’s available military records, the issue and documents submitted with the application, the analyst found several mitigating factors which would merit an upgrade of the applicant's characterization of service to honorable.  
       
       The analyst does not condone the applicant’s misconduct; however, the evidence in this case supports a conclusion that the characterization of service was too harsh, and as a result it is inequitable.  The analyst found that the length of the applicant's service to include his combat service provides a basis for mitigating circumstances.  
       
       Accordingly, the analyst recommends that the applicant’s characterization of service be upgraded to honorable.  However, the analyst determined the reason for discharge was fully supported by the record and therefore, remains both proper and equitable. 
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 13 July 2011         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: A. C. Murphy, Murphy, Brenton & Spagnuolo, PC, 4572 S. Hagadorn, Suite IA, East Lansing, MI  48823

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 with a self-authored statement, statement from counsel, two Articles 15, portion of an enlistment contract, various awards, commendations, ERB, discharge orders, ammended discharge orders and a DD Form 214.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding 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: 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 AR20100026902
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