Applicant Name:  ?????

Application Receipt Date: 2011/09/12	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he feels his discharge was unjust, and requests for an upgrade to Honorable and the narrative reason be deleted or reflect that he was undergoing a hardship.  He states he was previously discharged with honorable conditions for the periods 990810 to 020809 and 030115 to 030615.  During that period, he was a graduate of the Army Ranger and the Army Airborne Schools.  The period that he seeks an upgrade for, he was awarded two Army Achievement Medals; however, he received a disciplinary action near the end of his tour.  Had he known that he could decline punishment under Article 15 and opted for a Court-Martial, he would have taken that option.  When considering his more than six years of honorable service, there are only two reasons given for his general discharge.  Both were given during a period following a knee injury and diagnosis of a sleep disorder while suffering from PTSD, which was related to his previous service in Kosovo.  If not for his knee injury, he was told by an instructor at the Special Forces and Selection that he would have been selected.  He concludes that if you look at his overall service, a General under Honorable Conditions discharge deprives him of education benefits that he feels he has earned and deserves. 

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: 060330
Discharge Received: 			   Date: 060421   Chapter: 14-12b    AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: Maintenance Troop, Regimental Support Squadron, 11th ACR, Fort Irwin, CA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 051009, failed to go to his appointed place of duty as the prescribed time x 2 on 050831 and 050907, and disobeyed an NCO on 050826 / disrespectful in language toward an NCO on 050826 -reduced to E-1; forfeiture of $300 x 2 months; 45-day extra duty/restriction, (FG)

050601, failed to go to his appointed place of duty as the prescribed time x 2 on 041031 and 050217, and disobeyed an NCO between 0500401-050403 - reduced to E-3; forfeiture of $400 (suspended); 14-day extra duty/restriction, (CG)

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 030702    Current ENL Term: 3 Years  ?????
Current ENL Service: 	02 Yrs, 09 Mos, 20 Days ?????
Total Service:  		06 Yrs, 04 Mos, 06 Days ?????
Previous Discharges: 	     RA 990810-020809 / HD
			ARNG 020701-030115 / HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 63H (Tracked Vehicle Mech)   GT: 103   EDU: HS Grad   Overseas: Italy   Combat: NIF
Decorations/Awards: AAM-3; AGCM; NDSM; GWOTSM; ASR; OSR; NATO MDL 


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 13 March 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of misconduct—for pattern of misconduct: he received a company grade Article 15 on 050601 for missing formation twice and for disrespecting an NCO; he received a field grade Article 15 on 051009 for missing formation twice and for disrespecting an NCO twice; and he received counseling for missing formation on 060219, with a general, under honorable conditions discharge.  He was advised of his rights, to include that he was entitled to a hearing before an administrative separation board if he had over six or more years of active and reserve military service at the time of separation and if entitled, he may submit a conditional waiver of that right.  On the same date, the applicant acknowledged receipt of the proposed action and elected to consult with a legal counsel.  
       
       However, on 15 March 2006, the applicant, having been afforded the opportunity to consult with a counsel explicitly stated he did not wish to seek counsel and signed a statement waiving consultation with a legal counsel--he indicated he understood the implication of the discharge action and requested to complete the discharge process, and did not submit a statement in his own behalf.  The applicant indicated that he understood he had less than six years total active and reserve service at the time of separation and that he is not entitled to have his case heard by an administrative separation board.  The applicant further specified that there were no other promise, representation, or commitment made to him in connection with his separation.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts, and indicated the Soldier had no prior service.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  
       
       On 3 April 2006, 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 a careful review of all the applicant’s military records, the analyst determined that the discharge is improper.  
       
       The evidence of record shows that unit commander informed the Soldier that he was entitled to an administrative separation board if he had more than six years active and reserve military service at the time of his separation.  However, the applicant at his legal counsel appointment waived consultation with a legal counsel and at the same time, he also indicated he understood he has less than six year of active and reserve military service on a form that was provided him.  Accordingly, it appears the command misled him when they presented him with the form that stated he was not entitled to a board.  Furthermore, the commander's forwarding memorandum also indicated that the Soldier had no prior service, which by all accounts was incorrect.  Essentially, the applicant would not have seen the forwarding memorandum until after his separation had been approved.  It is determined that the it would have been obvious to the command that the statement that the Soldier did not have prior service was in error, if it had examined the Soldier's enlisted records brief (ERB) which showed he had a "Date of Initial Entry to Military Service" (DIEMS) that far predated his current enlistment.  Thereby, by the command misinforming the Soldier he was not entitled to an administrative separation board, deprived him of the consideration of his case by an administrative separation board when he had over six years of total active and reserve military service at the time of initiation of separation action.  The analyst noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board.  The analyst determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge 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 fully honorable and a change to the narrative reason for separation to Secretarial Authority. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 16 May 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 8 September 2011; DD Forms 214, dated 21 April 2006 and 9 August 2002; and NGB Form 22, dated 15 January 2003.
































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 and is improper.  The evidence of record shows that although the applicant waived consultation with legal counsel, the command erroneously misled him to believe he had less than six years of total active and reserve military service at the time of initiation of separation action and that he was not entitled to consideration of his case by an administrative separation board.  The Board noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board.  The Board determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority, with a corresponding SPD Code of “KFF.”  This action does not entail restoration of any grade.
        
IX.  Board Decision						
Board Vote:
Character - Change 5    No change 0
Reason -     Change 5    No change 0
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: Secretarial Authority under the provisions of Chapter 5, AR 635-200 with a corresponding SPD Code of "KFF"
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 AR20110018758
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