Applicant Name:  ?????

Application Receipt Date: 2011/09/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, there was no due process and the TDS counsel had an apathetic attitude.  Procedures for details and memoranda were not followed correctly.  Options offered by the commander were not followed through as promised.  He never should have been discharged out but only REFRAD and returned to TPU status.  This was the commander's offer that was never followed through.  Clemency and exceptional meritorious conditions were not taken into consideration.  The applicant requests the following:

1.  His discharge to be upgraded an Honorable.
2.  Reverse the separation and reinstate his status as a TPU per the commander's offer. 
3.  Be allowed to fulfill his remaining 154 days requirement in order to qualify for 18 years AFS.
4.  Be allowed to apply for sanctuary for Active Duty retirement.
5.  He is also requesting clemency and he will support his request by showing:
     a.  Errors in paperwork, (Detailed memorandum)
     b.  Inequity in treatment involving other NCO’s with same or similar situations.
     c.  Injustices in the processes and procedures by failing to follow procedures  by appropriate regulations and directives.
     d.  Did not receive due process regarding trial defense counsel (TDS) and the Inspector General (IG).  He was also given an option to REFRAD and return to a TPU from his commander.  They failed to follow through on this option as offered by him.  He requests relief in this matter.

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: 080720
Discharge Received: 			   Date: 090419   Chapter: 14, SEC II       AR: 635-200
Reason: Misconduct (Civil Conviction)	   RE:     SPD: JKB   Unit/Location: Noncommissioned Officer Academy, Fort Dix, NJ 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 060105, wrongfully operated a government vehicle without a valid state driver's license, forfeiture of $450.00 for two months, and extra duty for 45 days. (FG)

060308, failed to go to his prescribed place of duty at the prescribed time (060227), forfeiture of $820.00 for one month. (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  40
Current ENL Date: 041002    Current ENL Term: INDEF Years  ?????
Current ENL Service: 	04 Yrs, 06 Mos, 17 Days ?????
Total Service:  		18 Yrs, 02 Mos, 14 Days ?????
Previous Discharges: 	USAR 860717-860917/NA
                                       ADT    869818-870308/UNC
                                     USAR 870309-880224/NA
                                     RA 880225-91112/HD
                                     RA 911113-930301/HD
                                     RA 930302-960929/HD
                                     RA 960930-970623/HD
                                     RA 970624-980211/HD
                                     RA 980212-041001/HD
Highest Grade: E-7		Performance Ratings Available: Yes    No 
MOS: 63X48 Vehicle Maintenance Supervisor   GT: 105   EDU: HS Grad   Overseas: Germany x 2 and Korea    Combat: None
Decorations/Awards: MSM, ARCOM-2, AAM-5, AGCM-5, ARCAM, NDSM-2, GWOTSM, KDSM, NCOPDR-3, ASR, OSR-2, ARCOTR, ASUA 

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: The applicant states that he is attending college.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  The applicant submitted a partial copy of his separation proceedings which shows that on 20 July 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5a, AR 635-200, by reason of misconduct for being convicted by a civilian court for receiving a DUI (080125), with an under other than honorable conditions discharge.  He was advised of his rights.  
       
       On 5 September 2008, 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 a general, under honorable conditions discharge and submitted a statement in his own behalf.  The unit and intermediate commanders recommendation for separation from the Army and waiver of further rehabilitative efforts not contained in the available record and the analyst presumed government regularity in the discharge process.    
       
       The memorandum from the separation authority approving the discharge was not provided by the applicant and it is not contained in the record.
       
       The record contains, three General Officers of Memoranda of of reprimand for driving under the influence of alcohol dated 27 January 2006, 14 February 2007, and 15 March 2008.  

       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 issues and documents 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.  By the misconduct (civil conviction), the applicant diminished the quality of his service below that meriting a fully honorable discharge.  
       
       The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  
       
       Furthermore, the analyst noted the applicant's issues requesting reversal of his separation and reinstatement of his status as a TPU member and that he be allowed to fulfill his remaining 154 days requirement in order to qualify for 18 years AFS, and be allowed to apply for sanctuary for Active Duty retirement; however, the correction the applicant requests does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization.
       
             Further, the applicant also requests clemency due to errors in paperwork and inequity in treatment involving other NCO’s with same or similar situations.  The analyst noted all of the applicant's contentions; however, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.  Moreover, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly discriminated.   In fact, the applicant’s three memoranda of reprimand for driving under the influence, Article 15, and negative counseling statements justify a pattern of serious misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity.  

              In addition, the applicant contends that he was not afforded the opportunity for rehabilitation as he was told by his commander; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, that the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

             Lastly, the applicant contends that he did not receive due process regarding TDS counsel and the IG.  He was also given an option to REFRAD and be returned to a TPU by his commander and that they failed to follow through on this option as offered by him.  However, a careful review of the applicant's record found no evidence of arbitrary or capricious actions by the command or by TDS counsel or the IG.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Therefore, the analyst determined 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: 23 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293; dated 21 September 2011; DD Form 214, dated 19 April 2009; a self-authored statement, dated 21 September 2011, 16 pages; email correspondence, 54 pages; detail memoranda, 5 pages; a memorandum requesting for a new TDS Counsel, dated 26 January 2009, a memorandum, request for retention, dated 12 February 2009; deployment orders dated 17 January 2008, 2 pages; excerpt from AR 140-30,para 5-9 a- (3),(7), 1 page; certificate awarding the MSM, 1 each; MFR notes, 24 pages; certificates awarding the ARCOM, 2 each; certicates awarding the AAM, 4 each; orders for the AGCM, 4 each; character reference letters, 10 each; NCOERs, 21 each; NGB 22; excerpt from AR 635-200, pages 14-7; an ERB, dated 13 March 2009; and OMPF documents, 30 pages with various dates.

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						
Board Vote:
Character - Change 0    No change 5
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: No Change
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 AR20110019618
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