Applicant Name:  ?????

Application Receipt Date: 2011/05/20	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, on 25 March 2009 and 4 January 2010, he was accused of having 2 positive urinalysis.  He denied these charges but his chain of command at the time would not listen to him and he did not know how to clear his name.  He received two Field Grade Article 15s reducing him in rank from SGT/E-5 to PVT/E- 1.  As he was being chaptered out of the Army in April 2010 at Fort Sill, his legal aid, CPT D, advised him to go to a drug testing facility be retested with a more in depth screening process. 

On 16 April 2010, at Allied Health Research Laboratory, he was given a Hair 5 Drug Panel Test.  This was a tested for drugs in your system for up to a year.  All of his results were negative as he said the whole time to his Chain of Command.  Once his results were in, he asked his 1SG for help, because he had proof now.  He  was told by his 1SG that it was too late to use his results because the chapter paperwork was already finished and he was to sign out the next day.  He pleaded that the only reason he was in this situation was because there was a human error in testing his urine in the first place and he deserved to be heard after serving with no problems for almost 8 years of active duty service.

His BN Commander and CSM said they did not believe the results because the Army did not do the testing.  He argued that the whole reason he had to do that was because he thought someone was targeting him and tampered with his urine sample.  He further explained that he did not just pick some random place for the testing, because Legal had told him where to go.  

He thought he was being targeted by someone in his Chain of Command, but had no proof of it.  After his first false positive UA, he was moved to another unit within his BN.  CID said his levels were so high that he would be having at least 2 more positives UAs before it would be out his system.  He was tested every month with all negative results.  He was PCSing to Fort Sill for the BRAC move and had to go back to his old unit for another UA with the same Cadre he was accusing of tampering with his first sample.  Surprising he had another positive UA.  CPT D called and spoke to his BN CSM assuring him that the test results were legal and true.  The CSM stated that he did not care.

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: 100419
Discharge Received: 			   Date: 100427   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: A Battery, 2nd Battalion, 6th Air Defense Artillery Brigade, Fort Sill OK. 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 090424, dereliction in his performance of duties (090329); wrongfully used marijuana and ecstasy (090223-090325), reduction to E-4, forfeiture of $1,109 x 2, extra duty and restriction for 45 days (FG).

100305, wrongfully used marijuana and ecstasy (on or about 100104), reduction to E-1, forfeiture of $723.00 x 2, extra duty and restriction for 45 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: 091112    Current ENL Term: 02 Years  ?????
Current ENL Service: 	00 Yrs, 05 Mos, 15 Days ?????
Total Service:  		08  Yrs,  05 Mos, 15 Days  
Previous Discharges: 	RA 010319-030731/HD
                                       ARNG 030801-050504/NA
                                       RA 050505-080504/HD
                                       RA 080505-091111/HD                                     
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 92Y10 Unit Supply Specialist   GT: 120   EDU: HS Grad   Overseas: ?????   Combat: ?????
Decorations/Awards: ARCOM, AAM-5, AGCM, NDSM, GWOTSM, KDSM, NCOPDR, ASR, OSR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None listed by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 6 September 2010, 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 wrongfully use of marijuana and ecstasy (090325-100104), with an under other than honorable conditions discharge.  He was advised of his rights.
         
       On 13 April 2010, 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 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 19 April 2010, the separation authority approved the conditional waiver request, waived further rehabilitation 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 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 a 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 his 2 positive urinalysis were due to possible tampering.  However, the applicant's positive urinalysis tests were a result of the command’s random urine testing program to maintain good order and discipline within the unit.  Such random testing has been upheld by civilian and military courts as lawful and does not violate the US Constitutional protections against unreasonable search and seizure, under the Fourth Amendment, and self-incrimination, under the Fifth Amendment nor does it violate Article 31 of the Uniform Code of Military Justice.  In addition, military orders to produce a urine sample have been upheld in court as both legal and lawful and essential to military discipline.  Further, the analyst did not find any evidence of tampering or arbitrary actions by his command.
       
       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: 20 December 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, drug tests results from Allied Health Research Laboratory, DA Form 4856 (Developmetal Counseling), drug tests resuls from Ft. Bliss, 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 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						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
?????
















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 AR20110011268
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