Applicant Name: ????? Application Receipt Date: 2009/01/21 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293 and attached documents submitted by the applicant. 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: 070607 Discharge Received: Date: 070622 Chapter: 14-12c(2) AR: 635-200 Reason: Misconduct (Drug Abuse) RE: SPD: JKK Unit/Location: A Co, 1st BSTB, Fort Bragg, NC Time Lost: AWOL for 2 days (070416-070417), mode of return unknown. However, this period of AWOL is not annotated on the DD Form 214 block 29, dates of time lost during this period. Article 15s (Charges/Dates/Punishment): 070601, wrongful use of cocaine (070512-070515); reduction to E-1, forfeiture of $650 pay x 2 months, extra duty for 45 days and restriction for 45 days (FG). 070503, AWOL (070416-070417), and wrongful use of cocaine (070413-070417); reduction to E-4, forfeiture of $1,161 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: 28 Current ENL Date: 060630 Current ENL Term: 2 Years ????? Current ENL Service: 00 Yrs, 11Mos, 23Days ????? Total Service: 07 Yrs, 05Mos, 24Days ????? Previous Discharges: ARNG-000218-000506/NA ADT-000507-000908/UNC ARNG-000909-001221/NA RA-001222-030126/HD RA-030127-040728/HD RA-040729-060629/HD Highest Grade: E-5 Performance Ratings Available: Yes No MOS: 21J1P Construction Equipment Operator GT: 114 EDU: HS Grad Overseas: Southwest Asia Combat: Iraq (030404-040403) and Afghanistan (050412-060601) Decorations/Awards: ARCOM-3, AAM-3, AGCM-2, NDSM, ACM, ICM, GWOTSM, ASR, OSR-2, NATO MDL, CAB V. Post-Discharge Activity City, State: Parkton, NC Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: Evidence of record shows that on 7 June 2007, 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 testing positive for cocaine x 2 (070417) and (070523), with a general, under honorable conditions discharge. He was advised of his rights. The applicant was afforded the opportunity to consult with legal counsel; however, he waived legal counsel and understood that he had more than six years of active and reserve service at the time of separation and was entitled to an administrative separation board. The applicant did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. On 8 June 2007, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. The analyst noted that the evidence of record shows the applicant was initially notified that he was being separated under the provisions of Chapter 14, Paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense. However, AR 635-200, Chapter 2, Procedures for Separation , Section I, Notification Procedure 2-1a, Application, the procedures in this chapter will be followed when required by specific reason or reasons for separation. Paragraph 2-1b, when a Soldier is subject to separation for more than one reason, the following guidelines apply to procedural requirements (including procedural limitations on characterization of service or description of separation): (1) the basis for each reason must be clearly established. Chapter 2, paragraph 2-2a, the commander will cite specific allegations on which the proposed action is based and will also include the specific provisions of this regulation authorizing separation. The record shows that the applicant was specifically notified that he was being separated for commission of a serious offense, due to his positive urinalysis for cocaine dated 17 April 2007 and 23 May 2007, and the entire separation packet to include his Article 15s alludes to the applicant's serious misconduct due to his use of cocaine. The analyst acknowledges that the separation packet does not reference Chapter 14-12c(2), which is Abuse of Illegal Drugs and that command inadvertently omitted the (2). Chapter 14, AR 635-200, Section III, Acts or Patterns of Misconduct, 14-12, conditions that subject Soldiers to discharge; 14-12c, commission of a serious offense; indicates commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related charge under the MCM. However, the specific circumstances of the offense warranted separation and the applicant was notified that he was being specifically separated for testing positive for cocaine, which based on the evidence of record, the command's intent was for abuse of illegal drugs which is serious misconduct. Further evidence in the record to support this rationale was that at the time the applicant was separated someone in the discharge process issued the applicant a DD Form 214 which shows the authority for separation was AR 635-200, Paragraph 14-12c(2) and the narrative for separation was misconduct (drug abuse), with the separation (SPD) code of "JKK," and a reentry eligibility (RE) code of "4," in compliance with AR 635-5-1, which was authenticated by the applicant and the official authorized to sign the DD Form 214. Notwithstanding this, the analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case. Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error. The applicant had a record of misconduct (i.e., two positive urinalysis for cocaine). The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made. 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 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, but a general discharge 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 and the issues he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. 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 his service below that meriting a fully honorable discharge. Furthermore, the analyst noted the applicant's issue that his discharge was inequitable because it was based on one incident. However, the analyst concluded that the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. Having examined all the circumstances, the analyst determined that the applicant’s incidents of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline. These incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a fully honorable discharge. Further, after careful consideration of the applicant's entire service record, to include his faithful and honorable service, the analyst found that this service was determined not to be sufficiently meritorious to warrant an upgrade of the discharge under review. Additionally, regarding the applicant's issue in reference to him being diagnosed with Post Traumatic Stress Disorder (PTSD), the analyst found that the applicant's separation physical shows that he was being treated for his condition and that the report of mental status evaluation indicated he was mentally responsible for his behavior, was able to distinquish right from wrong, possessed sufficient mental capacity, and there was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels. Further, the analyst noted the independent document submitted with the application outlining various illnesses; however, this document does not support the issue that the applicant's discharge was the result of any medical condition. Finally, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. In view of the foregoing, 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. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 21 October 2009 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA 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 ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20090003696 ______________________________________________________________________________ Page 1 of 4 pages