Applicant Name:  ?????

Application Receipt Date: 2012/04/30	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "I feel that my discharge from the military was unjust. I did 15 months in Iraq in 2007-2008 and I had a rough deployment.  I lost my father and I endured war.  When I made it home, I made a dumb decision to smoke marijuana and right away I told my sgt (sic) and enrolled in Asap (sic) to get my self together . While overseas I reenlisted to go to Japan, so my orders came up and i (sic) went.  When I got to Japan I got drug tested and failed.  I told them that I was in the Asap (sic) program and they said it don’t (sic) carry over.  I thought that wasn't fair.  I was given an article 15 and told I would not get kicked out so I didnt make a fuss about it.  After I did my punishment, eight months later I was told that I am now getting discharged and there was nothing I could do about it.  I feel that was unjust and unfair.  Because they told me if I go to court martial they would all be against me and if I lost I would go to "the brig" /jail for 30 days.  Please help me, sincerly heart broken soldier (sic)."

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: 090427
Discharge Received: 			   Date: 090613   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: E Btry, 1-1st ADA Bn, APO AP 96367 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 081218, wrongful use of marijuana (080727-080826); reduction to E-1, forfeiture of $673 pay x 2 months (suspended), extra duty for 45 days 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:  28
Current ENL Date: 070817    Current ENL Term: 05 Years  ?????
Current ENL Service: 	01  Yrs, 09  Mos, 27  Days ?????
Total Service:  		03  Yrs, 04  Mos, 27  Days ?????
Previous Discharges: 	USAR-051212-060116/NA
                                       RA-060117-070816/NA
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 63B10 Wheeled Vehicle Mechanic/52D10 Power Generation Equipment Repairer   GT: 103   EDU: GED   Overseas: Japan/Southwest Asia   Combat: Iraq (070115-080402)
Decorations/Awards: ARCOM, AAM, NDSM, ICM-W/CS, GWOTSM, ASR, OSR

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 27 April 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, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 5 May 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action,  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 (although he was not entitled to a board) 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 3 June 2009, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of honorable.
       
       The analyst noted that on the applicant's DD Form 214 block 27, reentry eligibility (RE) code reads "3." According to AR 635-5-1, Separation Program Designator (SPD)/Reentry (RE) Codes Cross-Reference Table, requires a reentry eligibility (RE) code of "4."   
       
       The applicant's record contains a General Officer Memorandum of Reprimand (GOMOR), dated 2 December 2008, for wrongfully using marijuana, (Administrative).
       
       The applicant's record contains a Military Police Report, dated 7 October 2008, with additional persons related to the report.
       
       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 which would merit a change to the applicant's narrative reason for separation to include the reentry eligibility (RE) code.  
       
       The applicant requested a change to the narrative reason for separation.  The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," the separation code is "JKK," and the reentry eligibility (RE) code is "4."  
       
       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, separation code, entered in block 26, and RE Code, entered in block 27 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. 
       
       
       
       
       The applicant contends after completing his punishment for using marijuana, he was discharged eight months later and he feels that was unjust and unfair.  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.  
       
       Further,  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.  
       
       Additionally, the analyst found that someone in the separation process erroneously entered on the applicant's DD Form 214, block 27, reentry eligibility (RE) code of  "3."  The analyst recommends that block 27, reentry eligibility (RE) code be administratively corrected to "4."  Except for the foregoing modification to the applicant's reentry eligibility (RE) code, the analyst determined that the narrative reason for discharge to include the reentry eligibility (RE) code 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 September 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: Online application, dated (120423); Memorandum for LTC E, two (2) pages, dated (081217); Handwritten notes; FST MEDDAC Form 1218 (Fort Stewart/Hunter Army Airfield Army Substance Abuse Program (ASAP) Rehabilitation Team Agreement, dated (080617); DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated (081218); Memorandum, Commanders Notification and Required Response to a Positive Urine Test Report, dated (080918); and DA Form 4856 (Developmental Counseling Form), dated (081230).  

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 both proper and equitable and voted to deny relief.  

Further, notwithstanding the propriety of the applicant's discharge, the Board, on the basis of equity, voted to change the applicant’s reason for discharge, authority, and separation (SPD) code, and directed that block 25, separation authority be changed to “AR 635-200, paragraph 14-12c,” block 26, separation (SPD) code be changed to "JKQ," and block 28, narrative reason for separation be changed to "Misconduct (Serious Offense)," as it was approved by the separation authority.   

Except for the foregoing modifications, the Board determined that the reason for discharge was both proper and equitable.









        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 0
Reason -     Change 4    No change 1
(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), under provision of Chapter 14, AR 625-200.
Other: Correct block 25, separation authority to “AR 635-200, paragraph 14-12c,” block 26, separation (SPD) code to "JKQ."  
RE Code: 
Grade Restoration:   No   Yes   Grade: None

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 AR20120008651
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