Applicant Name: ????? Application Receipt Date: 2011/04/27 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he believes his discharge was unjust because he wanted help by going to the Army Substance Abuse Program and couldn't go. He still would like to sign up for classes to better educate himself. 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: 100910 Discharge Received: Date: 101018 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: E Troop, 2nd Squadron, 11th Armored Cavalry Regiment, Fort Irwin, CA Time Lost: AWOL x 2 from (100201-100212) for 12 days, the applicant was apprehended; AWOL from (100802-100825) for 24 days, the applicant returned to his unit. Total time lost was 36 days. Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 21 Current ENL Date: Reenl/091002 Current ENL Term: 3 Years The applicant extended his period of reenlistment for 8 months on (091002) giving him a new ETS date of: (130601). Current ENL Service: 0 Yrs, 11 Mos, 11 Days ????? Total Service: 4 Yrs, 11 Mos, 9 Days ????? Previous Discharges: RA 051004-091001/HD Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 11B10 Infantryman GT: NIF EDU: HS Grad Overseas: Southwest Asia Combat: Iraq (060803-071004) Decorations/Awards: ARCOM, GCMDL, NDSM, GWOTSM, ICMDLw/2 CS, ASR, OSR, CIB V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None submitted by the applicnat. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 8 September 2010, the applicant was charged with AWOL x 2 from (100201-100212) and AWOL from (100802-100825) and wrongfully using methamphetamines. On 23 September 2010, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. Further, the applicant indicated that he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did not submit a statement in his own behalf. The unit commander and intermediate commander's recommended approval of an under other than honorable conditions discharge. On 21 September 2010, the separation authority approved the discharge with an under other than honorable conditions discharge. The applicant was to be reduced to the lowest enlisted rank. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, and the issue submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ. The analyst noted that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and the applicant was aware of it prior to requesting discharge. 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 RO which indicates "Rehabilitation Testing.” The commander directs an individual test based on the soldiers alcohol/drug abuse treatment plan. 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 two DA Form 4187, Personnel Action that indicate the applicant went AWOL from his unit and upon his return would have had to be tested based on the commanders unit policy letter or SOP. Further, the applicant states on his DD Form 293 that he "wanted to go to the Army Substance Abuse Program (ASAP), and couldn't go." The applicant's return from AWOL status 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 IO for “Inspection other” instead of RO for “Rehabilitation Testing.” 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. 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: 4 November 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 149 dated 20 April 2011 in lieu of a DD Form 293. 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 2 No change 3 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 Official: BONITA E. TROTMAN Lieutenant Colonel, U.S. Army Chief, 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 Page 1 of 3 pages