Applicant Name:  ?????

Application Receipt Date: 2011/0803	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The counsel for the applicant states, in effect, that the applicant’s unit failed to comply with administrative regulations and procedures, and discharged the applicant without a hearing, despite a pending request for conditional waiver as documented by the attached e-mails, and that it amounts to violation of the Soldier’s due process rights.  The counsel states that he was assigned the applicant’s case on July 2010.  The applicant was facing an administrative separation for failing a urinalysis test under the provisions of AR 135-178, paragraph 12-1c.  There were no other instances of misconduct in his personnel file.  The applicant elected to submit a conditional waiver waiving his right to a board hearing in exchange for a General, under honorable conditions.  The applicant's request is reflected in the supporting documents labeled pages 8 thru 15 sent on 08 August 2010.  The request was sent to the unit contact, ILT N(J).  Despite numerous attempts to contact ILT N(J), both via e-mail and telephone inquiring as to the status of the applicant’s request, ILT N(J) did not respond.  Instead the [redacted] Civil Affairs Battalion unjustly discharged the applicant with a characterization of discharge of Under Other Than Honorable Conditions on 10 Nov 2010. This is clearly in contravention of AR 135-178, 3-16b(1), “If the conditional waiver is disapproved, the case will be referred to a hearing before an administrative board.”  The counsel adds that he was assigned as Trial Defense Counsel in the Reserves in November 2007.  In his entire career, he has never seen a reserve unit to completely fail to follow the Army Regulations when pursuing an administrative discharge.  He states that it is up to this board to uphold the rule of law in this case.  Failure to correct this injustice incentivizes other reserve units to simply discharge Soldiers without hearing in violation of federally enacted regulations.  On behalf of the applicant, the counsel asks the Board to upgrade his characterization of discharge to at least, General, under honorable conditions and consider giving him an Honorable discharge due to the severity of his unit’s conduct towards his separation.

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: 100618
Discharge Received: 			   Date: 101122   Chapter: 12-1c    AR: 135-178
Reason: Commission of a Serious Offense (Drug Abuse)	   RE:     SPD: NIF   Unit/Location: HHC, 486th CA Bn, Tulsa, OK 

Time Lost: NIF

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 080208    Current ENL Term: 8 Years  ?????
Current ENL Service: 	02 Yrs, 08  Mos, 16  Days ?????
Total Service:  		02 Yrs, 08  Mos, 16  Days (Includes IADT (080307-080925))
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 92Y (Unit Supply Specialist)   GT: NIF   EDU: 11 Years   Overseas: NIF   Combat: NIF
Decorations/Awards: NDSM

V.  Post-Discharge Activity
City, State:  Edmond, OK
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence shows the applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the United States Army Reserve.  However, the record indicates that on 10 November 2010, Department of the Army, Headquarters, 6th Regional Support Command, Moffett Field, CA, Orders 10-314-00050, discharged the applicant from the United States Army Reserve, effective 22 November 2010, with an under other than honorable conditions discharge.  The were no "additional instructions.”
       
       The evidence that the applicant submitted through his counsel shows that on 18 June 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, paragraph 12-1c, AR 135-178, by reason of misconduct—commission of a serious offense for wrongfully ingesting a illegal drug, to wit: THC (Marijuana) based on a urinalysis test of a specimen collected from the applicant on (100411), with an under other than honorable conditions discharge.  The notification memorandum was authenticated by LTC S, the rear detachment commander.  The memorandum shows that he was advised of his rights, but not the right to have his case considered by a separation board since he was being recommended for an under other than honorable discharge.
       
       The subsequent election of rights memorandum to the commander from the applicant on 7 August 2010, shows that 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 contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions and made no election on whether he was submitting a statement in his own behalf.  Thereafter, the record is void of the unit commander's subsequent recommendation to separate the applicant from the Army; the intermediate commander's review of the proposed action and recommendation; and the final authority made by the separation authority.  

       b.  Legal Basis for Separation:  
       Army Regulation 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities.  The characterization is based upon the quality of the Soldier’s service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army Regulations, and the time-honored customs and traditions of the Army.  The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization.  Possible characterizations of service include an honorable, general, under honorable conditions, under other than honorable conditions, or uncharacterized, if the Soldier is in entry-level status.  However, the permissible range of characterization varies based on the reason for separation.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records and the issue and documents submitted by the applicant's counsel, the analyst determined that the applicant's characterization is improper.  
       
       The evidence of record shows that on 7 August 2010, the applicant consulted with a legal counsel and noted that he was being recommended to be separated with a characterization of service as under other than honorable conditions at the time of initiation of separation action.  The evidence further shows that the applicant through his counsel requested for a conditional waiver and voluntarily waived his right to a hearing before an administrative separation board on the condition that upon separation his service will be characterized as general, under honorable conditions.  The analyst noted that he was entitled to have his case reviewed by an administrative separation board because of the under other than honorable characterization of his service.  The analyst noted that an administrative separation board is a right and required under the provisions of Army Regulation 135-178, and the record reflects that the applicant did not receive an administrative separation board based on the conditional waiver he submitted nor a general, under honorable conditions characterization of service.  The analyst determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the characterization of his service is improper.  
       
       In view of the foregoing, the analyst recommends to the Board that relief be granted in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the narrative reason for discharge was both proper and equitable. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 2 March 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: Mr. Adam M. Baker, 2917 N. Trail Ridge Rd., Edmond, OK 73012

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293, dated 10 July 2011 with e-mail correspondences; Memorandum, dated 18 June 2010, subject: Notification of Separation Proceedings Under AR 135-178; Memorandum for the Commander, dated 18 June 2010, subject: Response to Notification of Separation Proceedings Under AR 135-178, Chapter 12-1c; Memorandum for the Commander, dated 7 August 2010, subject: Request for Conditional Waiver-Separation Under AR 135-178, Chapter 12-1c.

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 characterization of service is improper.  The Board noted that the command used notification procedure informing him he was entitled to a board only if he had six or more years of service—he was being recommended for an under other than honorable characterization of service.  The Board further noted that the applicant through his legal counsel had elected for consideration of his case by an administrative separation board because he was being recommended for separation with a characterization of service of an under other than honorable conditions after the 30 calendar days to respond had expired.  However, the same notice also informed the applicant he can withdraw “any waiver” up until the time the separation authority approved his separation.  The Board noted that an administrative separation board is a right and required under the provisions of Army Regulation 135-178, and the record reflects that the applicant did not receive an administrative separation board and that he had waived it on the condition that he receive no less than a general, under honorable conditions discharge.  The Board determined that because the applicant did submit his conditional waiver of the Board before the separation authority acted, the command was obligated to accept his conditional waiver and act upon it by either accepting it, or rejecting it and sending his case to an administrative separation board; however, neither was the case and the applicant was separated with an under other than honorable characterization of service constituting a prejudicial error to the rights of the applicant.  In view of the foregoing, the Board determined that the characterization of service is improper.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined that the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of his former grade to SPC/E-4.







        
IX.  Board Decision						
Board Vote:
Character - Change 5    No change 0
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: SPC/E-4

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 AR20110015859
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