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: "9 years of honorable military service, with no incedents and multiple awards for conduct. I was not given a chance for rehabilitaion. My prior honorable service was not taken into consideration, There have Soldiers with less service that were given the chance to rehabilitate and continue service.

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: 101208
Discharge Received: 			   Date: 110228   Chapter: 14-12c(2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: HHC, 2/12th Cav (R) (P), Fort Hood, TX 

Time Lost: AWOL x 1 for 28 days (100916-101013), mode of return unknown. 

Article 15s (Charges/Dates/Punishment): 101029, Wrongful use of cocaine between (010818 and 100824) and AWOL (100916-101014), reduction to E5; forfeiture of $1,380.00 pay per month for 2 months; extra duty for 45 days; and restriction for 45 days (excess of 20 days suspended) (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: 080612    Current ENL Term: 06 Years  ?????
Current ENL Service: 	02 Yrs, 07 Mos, 19 Days The applicant's DD Form 214 under review does not account for the 28 days of AWOL.  Therefore the applicant's Current ENL Service should be: 02 yrs, 07 mos, and 19 days.
Total Service:  		09 Yrs, 10  Mos, 10  Days ?????
Previous Discharges: 	RA-010321-030930/HD
                                       RA-031001-041205/HD
                                       RA-041206-080611/HD
Highest Grade: E6		Performance Ratings Available: Yes    No 
MOS: 11B20/Infantryman   GT: 94   EDU: GED   Overseas: Southwest Asia   Combat: Afghanistan (040501-050501) Iraq (071206-090226)
Decorations/Awards: ARCOM-3, AAM-3, AGCM-2, NDSM, ACM-w/CS, ICM-w/2-CS, GWOTSM, NCOPDR-2, ASR, OSR-3, NATO MDL, CIB, EIB

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 8 December 2010, 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-commission of serious offense for testing positive for cocaine (100824) and going AWOL (100916-101014), with an under other than honorable conditions discharge.  He was advised of his rights.
       
       On 8 December 2010, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon receiving a characterization of service of no less favorable than general, under honorable conditions.  The applicant did not submit a statement on his own behalf.  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 with an under other than honorable conditions discharge.  
       
       The separation authority after carefully considering the applicant's separation packet, the recommendation of his chain of command, and his request for a conditional waiver, disapproved the applicant's request and refered his case to an administrative separation Board for consideration.
       
       On 27 December 2010, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 11 January 2011, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended the applicant be discharged with issuance of a character of service of general, under honorable conditions.
       
       The separation authority approved the recommendation of the administrative separation board 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 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 a careful review of all the applicant’s military records during the period of enlistment under review, the documents, and the issues submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       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.  By his misconduct, the applicant diminished the quality of his service below that meriting fully honorable discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. 
       
       Furthermore, the applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as a NCO, 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 the misconduct diminished the quality of service below that meriting an honorable discharge.
       
       
       
       
       The analyst acknowledges the applicant’s in-service accomplishments, noted the many accomplishments outlined in the documents with the application, and considered the quality of his service during the initial portion of the enlistment under review.  However, in review of the applicant's entire service record, the analyst found that these accomplishments and service were determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the incidents of misconduct and the documented actions under Article 15 of the Uniformed Code of Military Justice.
       
       The applicant contends he was not given the chance to rehabilitate like other Soldier.  The analyst noted the applicant's contentions; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states that the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  Further, AR 600-85, paragraph 3-8 entitled self referrals; states that the applicant could have self referred himself to the Army Substance Abuse Program (ASAP) counseling center for assistance.
       
       Additionally, the analyst noted that the DD Form 2624 (Specimen Custody Document-Drug Testing) found in the applicant's official record shows that the test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty.”  The commander directs an individual test for fitness for duty.  The commander has a suspicion that a Soldier is using a controlled substance, however, does not have probable cause.  The Limited Use Policy applies to this test basis, per AR 600-85.  The evidence of record shows that the applicant was counseled by the Company Commander on 2 September 2010 in reference to him testing positive for cocaine during a company urinalysis test which was administrated on 24 August 2010.  Furthermore, the Lab Report, dated 31 August 2010 shows the unit urinalysis test which was collected on 24 August 2010, indicates the test basis was coded IO.
       
       The unit commander ordered the applicant to provide a urine sample based on his unit policy.  The applicant consulted with legal counsel, who would have informed him if the Limited Use Policy applied.  In view of the aforementioned, the analyst determined that the code on the DD Form 2624 was in all likelihood incorrect and should have been coded IO for “Inspection Other” instead of CO for “Competence for Duty.”  The analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.
       
       In view of the foregoing, 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, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: None 

Exhibits Submitted: Online application, NCO Evaluation Report (5), Service School Academic Evaluation Report, (3), Copy of Dipoloma from Basic Noncommissioned Officer Course, Air Assault Course, Certificate for award of The Army Commendation Medal (2) and Army Achievement Medal (3), Copy of Recommendation for Award of the ARCOM, Orders awarding the Army Good Conduct Medal (2nd Award).

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 AR20120009528
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