Applicant Name:  

Application Receipt Date: 2012/04/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that the following are reasons for an upgrade; however, if the Board disagrees, he asks to please explain in detail the reason for disagreeing:  The presumption of regularity that the Service acted correctly in characterizing his service less than honorable does not apply to his case.  His conduct and efficiency ratings/behavior and proficiency marks were excellent while he served.  He received awards and decorations including overseas combat service.  He has been a good citizen since his discharge.  His record of promotions shows his good service as a Soldier.  His record of an Article 15 shows the only offense that resulted in his discharge.  His ability to serve was impaired because of marital/childcare issues.  His wife, at that time, had a court order for her to stay in the State of Ohio, because of her children and their father.  He had received a call from the county children services asking him to take custody of his three-year-old daughter in August 2010.  He immediately went to JAG and asked for advice, but that JAG would not help in custody cases, so he pursued custody of her.  He was told in court in March 2011 that he needed to either basically give up or get out of the Army.  His chain of command was involved and he was never told about a hardship discharge.  He went to court regularly only for the court to continue multiple times.  He had visits set up from the children services which he requested to attend to on several four-day weekends.  During court, the magistrate informed him that if he did not find a way to get out of the Army then his daughter would be adopted through the court system.  He has attached a copy of the custody documents which indicate that he received custody on 21 December 2011 and that his daughter’s sisters were still in foster care and that courts were pending a motion for permanent court custody.  If he had not done what he did to get out, then his daughter would be adopted along with her sisters.  After his discharge, he had to pass drug tests from October 2011 until he received custody of his daughter.  He currently works at a place that drug tests regularly.  He only failed one test for the Army, so he could get out and receive custody of his daughter.  He has passed every test since the day he received his Article 15.  He expresses appreciation for the Board’s time.

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: 110928
Discharge Received: 			   Date: 111021   Chapter: 14-12c(2)    AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: Forward Support Company, 7th Engineer Battalion, Fort Drum, NY 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 110822, wrongfully used marijuana (110619-110718), reduced to E-1; forfeiture of $733 x 2 months (suspended); 45-day extra duty and restriction, (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: 080709    Current ENL Term: 04 Years  ?????
Current ENL Service: 	03 Yrs, 03 Mos, 13 Days ?????
Total Service:  		03 Yrs, 10 Mos, 00 Days ?????
Previous Discharges: 	ARNG (071221-080708) / HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 91F (Small Arms/Artillery)   GT: 95   EDU: HS Grad   Overseas: SWA   Combat: Iraq (090608-100527)
Decorations/Awards: ARCOM; NDSM; ICM-CS; GWOTSM; ASR; OSR; MUC
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 26 September 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct—for wrongful use of marijuana (110619-110718), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 27 September 2011, the applicant waived consultation with a legal counsel and indicated he understood the impact of the discharge action, 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 29 September 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.
       
       There is a CID report, dated 4 August 2011, on file.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 being absent 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 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 service below that meriting an honorable discharge.  
       
       The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the misconduct and its documented action under Article 15 of the Uniformed Code of Military Justice.  Moreover, his commander noted during the administration of his Article 15 that the applicant has stated that he had no desire to change his behavior and recommended his separation.
       
       The applicant contends he is entitled to an upgrade of his discharge because of mitigating circumstances which contributed to his misconduct.  Specifically, he claims family issues at home resulted in his discharge.  While the applicant may believe his family issue was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief through the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.
       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: 21 September 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 23 April 2012 with self-authored statement; Court Orders, dated 6 January 2012; DD Form 214 for service under current 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:




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 AR20120008372
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