Applicant Name:  ?????

Application Receipt Date: 2011/09/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "As an E-5 in my early twenties, I made an error in judgement which resulted in UCMJ action. I tested positive for marijuana during a company urinalysis. The result was an Article 15, treatment in ASAP, and subsequently, a Chapter 9 General Discharge. Despite my actions while off-duty, my on-duty actions reflected my professionalism and adherence to Army values during my more than 5 years of enlistment (as reflected in my positive NCOER submitted by leadership after my positive test result).  Since my discharge in 2002, I have remained employed at a children's hospital working as an ER technician, and attending nursing school, graduating with Honors in 2009. I became a husband and recently a father. During nursing school I trained at the VA in FL as an ER nurse, I precepted soldiers and sailors training in the Army's Special Forces program under SFC M.C..I now fully understand how errors in judgement made while young can follow through your adult life and career. During my discharge, the JAG lawyer mentioned Limited Use Evidence, stating that command used AR 600-85 and that the 19JUN02 urinalysis was part of ASAP. He stated that a Honorable Discharge was required and suggested I contact the Discharge Review Board. For the past 9 years I have focused on moving forward and in a positive direction with my life. I truly believe that I made a youthful mistake, and that my actions prior to, and following my UCMJ action, are a true reflection of my work ethics and character. Please consider my request to change my General discharge to Honorable. Thank you for your consideration in this matter."

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: NIF
Discharge Received: 			   Date: 020730   Chapter: 9      AR: 635-200
Reason: Drug Rehabilitation Failure	   RE:     SPD: JPC   Unit/Location: B Co, Beaumont AMC, Fort Bliss, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 020403, Wrongful use of marijuana between (020119 and 020219), reduction to E4; forfeiture of $876.00 pay per month for one month; extra duty for 45 days; and restriction for 45 days, (FG).

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 990923    Current ENL Term: 03 Years  ?????
Current ENL Service: 	02 Yrs, 10  Mos, 08  Days ?????
Total Service:  		06 Yrs, 06  Mos, 08  Days ?????
Previous Discharges: 	ARNG-960123-060815/NA
                                       ADT-960816-970130/UNC
                                       ARNG-970131-970318/NA
                                       RA-970319-990922/HD



Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 91W10/Practical Nurse   GT: 111   EDU: HS Grad   Overseas: Korea   Combat: None
Decorations/Awards: ARCOM-2, AAM, AGCM, NDSM-2, AFEM, NCOPDR, ASR, OSR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: The applicant states: "Since my discharge in 2002, I have remained employed at a children's hospital in Florida, working as an ER technician, and attending nursing school, graduating with Honors in 2009. I became a husband and recently a father. During nursing school I trained at the Bay Pines VA in FL. As an ER nurse."

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The specific facts and circumstances leading to the applicant's discharge from the Army are not contained in the available records.  However, the record contains a properly constituted DD Form 214, (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  
       
       His DD Form 214 indicates he was discharged under the provisions of Chapter 9, AR 635-200, for alcohol or other drug abuse rehabilitation failure, with characterization of service of general, under honorable conditions.  Furthermore, the DD Form 214 shows a Separation Code of JPC (i.e., drug rehabilitation failure), with a reentry eligibility (RE) code of 4.
       
       On 25 July 2002, Orders 206-0022, DA, HQ, US Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, TX, discharged the applicant from the Regular Army, effective date: 30 July 2002.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to the Army Substance Abuse Program (ASAP) for alcohol or drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Army policy states that an honorable or general, under honorable conditions discharge is authorized depending on the applicant’s overall record of service.  However, an honorable discharge is required if restricted use information is used in the discharge process.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s available military records during the period of enlistment under review, the issues, and documents he submitted, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The only pertinent evidence available for review regarding the applicant's discharge is the DD Form 214, Certificate of Release or Discharge from Active Duty, which was authenticated by the applicant.  The DD Form 214 shows the applicant was discharged under the provisions of Chapter 9, AR 635-200, for drug rehabilitation failure. 
       
       
       
       
       
       
       
       
       
       
       
       For this type of discharge, the applicant would have been enrolled in the Army Substance Abuse Program (ASAP) and would have been aware of the consequences of any action which would demonstrate any inability or refusal to participate in, cooperate in, or successfully complete such a program.  Inasmuch as the applicant's official record is void of the circumstances leading to his discharge, it is presumed that he was identified as a rehabilitation failure subsequent to his enrollment in the ASAP program.  Therefore, it is also presumed that the applicant was properly counseled and afforded a reasonable opportunity to overcome his problems, and chose not to avail himself of this opportunity. 
       
       The applicant's contentions were carefully considered.  However, the analyst is unable to determine whether his contentions have merit because the facts and circumstances leading to the discharge are unknown.  There is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service he was granted.  The applicant’s statement alone does not overcome the presumption of government regularity in this case and he provided no documentation or further evidence in support of his request for an upgrade of his discharge.  The burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since the evidence is not available in the official record. 
       
       The analyst noted the applicant's issue concerning his drug test, dated 19 June 2002 which he believes was protected under the limited use policy.  However, evidence of record shows that the test was coded as Inspection Random (IR), "Commander directed partial unit test, used for normal monthly random testing (i.e. 10% unit testing," which was not protected under the limited use policy.
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears 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: 28 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Online application 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 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: NA
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 AR20110019309
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