Applicant Name:  ?????

Application Receipt Date: 2011/08/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant contends that an upgrade of his discharge should be granted for the following reasons:  (1)  He was never offered any counseling or help prior to the incident; (2)  He asked his commanding officer prior to the incident for help regarding his problem; (3)  His commander told him he would not get an under other than honorable conditions discharge if he did not seek a separation board; (4)  He never received final counseling from his command; (5)  He continued to drill for a year after the incident and was told by the new command taking over that it would be okay; (6)  He never missed a drill the whole time he was in the Army National Guard; (7)  One incident should not take away his military career; (8)  Other Soldiers were hot and did not get an under other than honorable conditions discharge; and, (9)  He called to get his final counseling so he could reapply to get in and he was told that he did not need final counseling when it clearly states that he should have been given that.  

He asks that the Board reverse his under than honorable conditions discharge so that he can get back in the Army again.

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: 080630
Discharge Received: 			   Date: 090405   Chapter: 8-35i(i)      AR: NGR 600-200
Reason: Pattern of Misconduct	   RE:     SPD: NA   Unit/Location: B Battery, 3/197th FA, State Armory, New Hampshire 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  36
Current ENL Date: 030201    Current ENL Term: 2 Years  (6 Years Extension on 041226)
Current ENL Service: 	6 Yrs, 2 Mos, 5 Days ?????
Total Service:  		15 Yrs, 5 Mos, 27 Days ?????
Previous Discharges: 	RA/840814-870613/HD
                                       USAR/870614-930202/HD
                                       (Break in Service 930203-030131)
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 13B10 Cannon Crewmember   GT: 95   EDU: GED   Overseas: Southwest Asia   Combat: Iraq (040223-050125; 060926-070911)
Decorations/Awards: ARCOM (2), AGCM, NDSM, ICM, GWOTEM, GWOTSM, HSM, MFOM, AFRMw/M Dev, NCOPDR, ASR, OSR, NM

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 30 June 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, AR 135-178, by reason of misconduct—abuse of illegal drugs.  He tested positive for cocaine on 4 May 2008.  The unit commander recommended he receive a general discharge; however, he notified the applicant that he could receive a honorable or general discharge.  He was advised of his rights.  
       
       On 25 July 2008, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board.  The applicant did not submit a statement on his own behalf, and indicated that statements would be provided at a later date.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval of the separation.  
       
       On 25 March 2009, he submitted an unconditional waiver to appear before the administrative separation board.  The applicant was scheduled to appear before an administrative separation board on 5 April 2009. 
       
       On 5 April 2009, the separation authority indicated that he had reviewed the applicant's unconditional waiver requesting a general discharge.  The imposing authority stated the he carefully considered the information submitted by the applicant and his counsel, his entire military history including his tours in Iraq, the applicant's family's statement, the applicant's chain-of-commands' recommendations, and the relevant facts associated with the applicant's arrest by the police department. The separation authority directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  
       
       On 5 April 2009, the applicant was discharged from the New Hampshire Army National Guard and as a Reserve of the Army.  He was reduced to the lowest enlisted grade.

       b.  Legal Basis for Separation:  
             National Guard Regulation (NGR) 600-200 and Army Regulation 135-78 govern procedures covering enlisted personnel management of the Army National Guard.  Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard.  Paragraph 8--35i(1) of that regulation provides in pertinent part that individuals can be separated for acts or patterns of misconduct.
       
       Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve.  Chapter 12 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, and convictions by civil authorities.  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 available military records, and the issue and documents submitted with the application, the analyst found several mitigating factors which would merit a partial upgrade of the applicant's characterization of service to general, under honorable conditions.  
       
       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 the length and quality of the applicant's service, to include his combat service, partially mitigated the discrediting entry in his service record.  However, by his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. 
       
       The applicant's issues were noted and carefully considered.  The available evidence shows that on 30 June 2008, the applicant was counseled by his company commander for testing positive for cocaine.  The applicant was directed to enroll in a rehabilitation program and seek counseling from an approved rehabilitation center.  The applicant indicated that he fully understood this requirement to seek rehabilitation at a state certified substance abuse center once he was demobilized and returned to his unit of assignment.  Further, the applicant was properly counseled regarding the basis of his discharge, afforded an opportunity to consult with consul, and advised of his entitlement to an administrative separation board, which he unconditionally waived.  Therefore, 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.  The applicant did not provide any evidence to support his contentin that he sought the commander's help prior to the incident in question, and his official record does not contain any evidence of such.  There was sufficient evidence to show that the applicant was notified that he could receive an under other than honorable conditions discharge and that he voluntarily submitted an unconditional waiver to appear before an administrative separation board.
       
       Furthermore, the analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  
       
       The analyst noted the applicant's contention that other Soldiers who tested positive for drugs did not receive under other than honorable conditions discharges.  The method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.
       
       The analyst noted the applicant's issue about his desire to rejoin the Service.  However, the Board does not grant relief solely for the purpose of enhancing reenlistment opportunities.  At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment.  
       
       Accordingly, the analyst recommends that the applicant’s characterization of service be upgraded to general, under honorable conditions.  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: 8 June 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, and a copy of his NGB Form 22

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 characterization of service was too harsh, based on the overall length and quality of the applicant's service to include his combat service and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board determined that the reason for discharge was both proper and equitable and voted not to change it.  This action entails restoration of grade to SGT/E-5.
        
IX.  Board Decision						
Board Vote:
Character - Change 4    No change 1
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: None
Other: Thru:  Chief, National Guard Bureau            Date: 8 June 2012
To:  Adjutant General, State of New Hamphire

            The Army Discharge Review Board, established under the provisions of Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as Title 10, United States Code, Section 1553, in the case of the applicant named in Part I recommends that the applicant be considered for a change of his discharge by the Adjutant General, State of New Hampshire, with issuance of a new NGB Form 22a, as follows:
                  
           ( X )   Change characterization of discharge to General, Under Honorable Conditions.
           ( X )   This action entails a restoration of grade to SGT/E-5
           ( X )   Other (see remarks below). 
Remarks:  This action entails a change to the applicant’s discharge from the Reserve of the Army to reflect a characterization of service of general, under honorable conditions.  ARBA Promulgation Team is directed to ensure that the applicant’s discharge from the Reserve of the Army reflects the aforementioned change.
RE Code: 
Grade Restoration:   No   Yes   Grade: SGT/E-5

XI.  Certification Signature
Approval Authority:



ARCHIE L. DAVIS III
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 AR20110017291
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