Applicant Name: ????? Application Receipt Date: 2010/03/17 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant's counselor states that the veteran served 2 tours in Iraq and had no troubles until he injured himself and was sent to WTB. 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: 090916 Discharge Received: Date: 091027 Chapter: 14-12c(2) AR: 635-200 Reason: Misconduct (Drug Abuse) RE: SPD: JKK Unit/Location: Company C, Warrior Transition Battalion, Madigan Army Medical Center, Tacoma, WA Time Lost: None Article 15s (Charges/Dates/Punishment): 080611, wrongfully used cocaine between on or about (080220-080304), reduction to the grade of SPC (E-4), forfeiture of $509.00 pay per month for 1 month, extra duty and restriction for 30 days (FG) Article 15, 090309, engaged in sexual contact with a PFC, which was without permission of the said PFC on or about (080725), wrongfully communicated a threat to a PFC on or about (080725), stole US currency, military property, less than $500.00, the property of US Government on or about (080506), wrongfully used cocaine between on or about (081207-090107), forfeiture of $699.00 pay per month for two monhts, suspended, to be automatically remitted if not vacated before (090829), reduction to Private (E-1), extra duty 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: 23 Current ENL Date: Reenl/060518 Current ENL Term: 4 Years ????? Current ENL Service: 3 Yrs, 5 Mos, 10 Days ????? Total Service: 9 Yrs, 0 Mos, 11 Days ????? Previous Discharges: ARNG 001017-001112/NA ADT 001113-010409/HD ARNG 010410-040113/HD RA 040114-060517/HD Highest Grade: E-5 Performance Ratings Available: Yes No MOS: 11B1P Infantryman GT: 103 EDU: GED Cert Overseas: Southwest Asia Combat: Iraq (050405-050716) Decorations/Awards: AAM (3), GCMDL, NDSM, GWTSM, GWTEM, ICMw/CS, NCOPDR, OSR, AFRMw/M Device, CIB, V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None submitted by the applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 15 September 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c(2), AR 635-200, by reason of misconduct-abuse of illegal drugs; in that he tested positive for cocaine on (090803), with a general, under honorable conditions discharge. He was advised of his rights. The applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board and submitted a statement in his own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander's reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. The Staff Judge Advocate forewarded the separation packet to the acting Commander, Headquarters, Fort Lewis, WA, (General Court-Martial Convening Authority) to obtain his decision whether to discharge the applicant under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, for misconduct-abuse of illegal drugs or continue processing the applicant through the physical evaluation board system in accordance with AR 635-200, paragraph 1-33, and AR 635-40. On 1 October 2009, the General Court-Martial Convening Authority reviewed the information pertaining to the applicant and the Staff Judge Advocate recommendation that he be separated under the provisions of AR 635-200, Chapter 14-12c(2), by reason of misconduct-abuse of illegal drugs. The General Court-Martial Convening Authority determined that the applicant's medical condition was not the direct and substantial contributing cause of the conduct underlying the recommendation for administrative separation and there are no other circumstances of the applicnat's case that warrant disability processing instead of further processing for administrative separation, and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. The applicant received two General Officer Memorandum of Reprimands for suspicion of driving under the influence of alcohol and the other one for driving under the influence of alcohol, dated 21 February 2007 and 14 November 2007, both (Administrative). 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 carefully examining the applicant’s record of service during the period of enlistment under review and the issue submitted with the application, the analyst found no mitigating factors which 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. 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 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 statement that indicate the applicant and his friend was drinking while at a park, which was not authorized. This would have given the unit commander probable cause 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 PO for “Probable Cause” 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. The analyst noted the applicant's issue that he served 2 tours in Iraq and had no troubles until he injured himself and was sent to WTB. The analyst considered the applicant’s quality of service during the initial portion of the enlistment under review. However, this service was determined not to be sufficiently meritorious to warrant an upgrade to the characterization of service. 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. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 8 November 2010 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: Yes. Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 3 March 2010. 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: No Change RE Code: Grade Restoration: No Yes Grade: No Change 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 AR20100011128 ______________________________________________________________________________ Page 1 of 4 pages