Applicant Name:  ?????

Application Receipt Date: 2011/10/24	Prior Review:     Prior Review Date: 110601, denied

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  "I am requesting an upgrade in discharge because I believe the current discharge reason has been inappropriately used. I believe the actual reason for the discharge is because I was not willing to re-enlist in the Anny. I had a conversation with the Unit regarding re-enlistment at which time I informed them that I had no plans to re-enlist. Shortly after that conversation, I was told I would be discharged for misconduct (drug abuse).  The offense of misconduct occurred on May 15 2009, the investigation was completed on June 23, 2009 and the Commander's Report of Disciplinary or Administrative Action (DA Form 4833) form was finalized on July 31, 2009. The OA Form 4833 (see attached) shows the disciplinary action that I received in regards to this offense. Each punishment listed was successfully completed. The discharge was effective January 15, 2010. I have never heard of a discharge taking six (6) months to complete. Therefore, I believe it violated my rights to discharge me from the military based on the misconduct offense that I was already charged for and served the required punishment, Article 15 received. Being charged twice for the same offense seems like double jeopardy. There was never an action for discharge based on this offense. In fact, I believe the Unit failed to assist me as a Soldier with ensuring that I received the proper medical care needed although this was a one-time occurrence. I consider the drug offense to be a medical condition and warranted an honorable discharge with all benefits. Upon returning from IRAQ, I was suffering an enormous amount of stress and received no assistance from my Unit. Being a young man new to the military and working in war zones, the Unit should have provided additional mentoring to help me cope with the stresses of the possibility of being killed daily. Since this offense, I have been drug free and working as a Special Police Officer and Security Guard."

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: 091214
Discharge Received: 			   Date: 100115   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: C Co, 63rd ESB, Fort Gordon, GA  

Time Lost: None

Article 15s (Charges/Dates/Punishment): The applicant stated in his application that he received an Article 15; however, that document is not contained in the available record. 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 070827    Current ENL Term: 02 Years  23 Weeks
Current ENL Service: 	02  Yrs, 04 Mos, 19 Days ?????
Total Service:  		02  Yrs, 04 Mos, 19 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 25L10 Cable Installer/Maintainer   GT: 97   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (080510-090206)
Decorations/Awards: ARCOM, NDSM, ICM-CS, GWOTSM, ASR, OSR



V.  Post-Discharge Activity
City, State:  Upper Marlboro, MD 
Post Service Accomplishments: Has been drug free and now works as special police officer and as a security guard.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 14 December 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 wrongfully using marijuana (090521), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 17 December 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted 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 fully honorable discharge.
         
       On 7 January 2010, the separation authority 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 a careful review of all the applicant’s military records during the period of enlistment under review, the issues and document submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The analyst determined that the applicant’s discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. 
       
       The applicant contends that he was unfairly discharged for not wanting to reenlist.  However, the applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, 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 diminished the quality of his service below that meriting a fully honorable discharge.
       
       The applicant contends that he was punished twice when he received an Article 15 for failing a drug test and was later discharged for the same reason.  However, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Army Regulations stipulate that Soldiers may receive an Article 15 for the same offenses for which they are later discharged.  The fact remains that drug abuse and military service are incompatible.  
       
       Furthermore, the analyst noted the applicant’s issue that after returning from Iraq he was stressed out.  However, 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.
       
       
       
       The applicant also contends that the narrative reason for his discharge should be changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 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."  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, 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.  
       
       Finally, the analyst noted the applicant's issues about reinstatement of his security clearance and correction of his FBI record; however, these issues do not fall within the purview of this Board.  
       
       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: 26 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: MP Report and commander's report of disciplinary action.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.  Further, notwithstanding the propriety of the applicant's discharge, the Board determined that the applicant’s narrative reason for discharge is inequitable based on the circumstances in that the separation authority approved a Chapter 14-12c discharge.  The Board voted to correct block 25 to read separation authority “AR 635-200, paragraph 14-12c,” block 26, separation code to read "JKQ," block 27, reentry code to read “3,” and block 28, reason for separation to read “Misconduct (Serious Offense),”  as it was approved by the separation authority.   

















 
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 5    No change 0
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: Misconduct (Serious Offense
Other: Change the SPD Code to JKQ and the authority to AR 635-200, Paragraph 14-12c
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 AR20110021338
______________________________________________________________________________

Page 1 of 4 pages