Applicant Name: ????? Application Receipt Date: 2011/08/01 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that his discharge is inequitable because it is based on one isolated incident in over two years of service with no other adverse action. He asks the Board to obtain his military records as he is unable to get them at this time. He states that he was informed about the "limited use" policy and states that he was told he would be retained if he confessed—he took the Article 15 punishment and kept his nose clean; however, he was separated six months later after complying with all that he was told to do. He adds that he does not know what he is doing and he cannot afford help. He states that to this day, he does not know why or how he could have tested positive for a drug and he had no defense against the test. He loves his country and he was willing to go to war for it. He is a Christian man; he has married a Christian wife; and they attend church regularly. He has a job but he needs more education to better his family. He was young and naïve, and he let others do his bidding for him, but that has changed now. 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: 040124 Discharge Received: Date: 040308 Chapter: 14-12c AR: 635-200 Reason: Misconduct (Drug Abuse) RE: SPD: JKK Unit/Location: Forward Maintenance Company, 25th BSB, Fort Lewis, WA Time Lost: None Article 15s (Charges/Dates/Punishment): 030916, wrongful use of Dmethamphetamine (030624-030627), reduced to E-1; forfeiture of $575 x 2 months, 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: 020115 Current ENL Term: 3 Years ????? Current ENL Service: 02 Yrs, 01 Mos, 24 Days ????? Total Service: 02 Yrs, 01 Mos, 24 Days ????? Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 63W (Wheel Vehicle Repairer) GT: 93 EDU: HS GED Overseas: NIF Combat: NIF Decorations/Awards: NDSM; GWOTEM; ASR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 21 January 2004, 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—for wrongful use of Dmethamphetamine (030624-030627), with a general, under honorable conditions discharge. He was advised of his rights. He was advised of his rights. The applicant's election of rights is not completed but indicate his signature in the available record and the analyst presumed government regularity in the discharge process. 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. According to an undated memorandum, the separation authority waived further rehabilitation 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 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 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. 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. This single incident of misconduct by abusing illegal drugs, the applicant knowingly risked a military career clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. Further, the applicant contends that he was not informed about the "limited use" policy and that he did not do what he was discharged for. However, 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 issue. There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly discriminated. The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge. Moreover, although the laboratory confirmed biochemical test results provided by the applicant indicates the condition under which the sample was collected as commander directed inspection, further information within that document shows a coding of "IR-Inspection Random." According to AR 600-85, Table 10-1, which summarizes how a Soldier's confirmed positive test results may be used and that the coding of an inspection as random sample (IR) is usable in disciplinary proceedings; basis for separation; and usable for characterization of service. In addition, the analyst noted that the applicant met entrance qualification standards to include age. There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 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. The analyst also noted the applicant's issues about his desire to have better job opportunities and the benefits of the GI Bill. However, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment 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. Additionally, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 March 2012 Location: Washington, D.C. Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293, dated 19 July 2011 with its listed enclosures; Article 15, dated 16 September 2003; Lab Confirmed Biochemical Test Results with applicant's test information; six certificates of training/achievements/recognition/education; several documents with information on limited use policy; incomplete separation documents; and certificate of birth. 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: EDGAR J. YANGER 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 AR20110016077 ______________________________________________________________________________ Page 1 of 4 pages