Applicant Name: ????? Application Receipt Date: 2010/08/04 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he requests an upgrade of his discharge to fully honorable. He contends that he was discharged after one incident. He further contends that he was pending a medical discharge; and had he not been pending a medical discharge he would not have been discharged for this one incident. 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: 020925 Discharge Received: Date: 021022 Chapter: 14-12c AR: 635-200 Reason: Misconduct RE: SPD: JKQ Unit/Location: A Co, 3-325th IN Regt (ABN), Fort Bragg, NC Time Lost: None Article 15s (Charges/Dates/Punishment): 020723, wrongfully used cocaine (020525-020603); reduction to E-1, forfeiture of $552 pay x 2 months, 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: 21 Current ENL Date: 010925 Current ENL Term: 04 Years ????? Current ENL Service: 01 Yrs, 00 Mos, 28 Days ????? Total Service: 01 Yrs, 00 Mos, 28 Days ????? Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 11B1P Infantryman GT: 104 EDU: 14 Years Overseas: None Combat: None Decorations/Awards: NDSM, ASR V. Post-Discharge Activity City, State: Valencia, CA Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 25 September 2002, 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 receiving a Field Grade Article 15 (020723), for wrongfully using cocaine with a general, under honorable conditions discharge. He was advised of his rights. On 25 September 2002, 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 general, under honorable conditions discharge. The separation authority waived further rehabilitative efforts and directed the applicant be discharged 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 documents 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 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 a 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. The applicant contends that he was discharged after one incident. 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. This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. The applicant further contends that he was pending a medical discharge; and had he not been pending a medical discharge he would not have been discharged for this one incident. There is no evidence of record and the applicant has submitted no probative medical evidence that he had a medical problem which rendered him disqualified for further military service and that he was not able to perform his duties, with either medical limitation or medication. 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. Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. Furthermore, 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. However, the evidence of record contains a sworn statement that indicates the applicant admitted to using illegal drugs and freely agreed to taking a drug screening test. This would have given the unit commander justification to direct the urinalysis. Additionally, 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 VO for “Soldier Consent” 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. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 27 April 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: DD Form 293, dated (100720); and Medical Documents, consisting of three (3) pages. 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 XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: None 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 AR20100020217 ______________________________________________________________________________ Page 3 of 3 pages