Applicant Name:  ????

Application Receipt Date: 2011/11/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "Based on my understanding of Army Regulation 635-200, I believe the separation process was not followed correctly, that it was rushed and pieced together with blatant disregard to the regulation.  This includes denial of an Administrative Separation Board, not allowing for proper legal counsel and inconsistent discharge reasoning.  I believe that the  USTRANSCOM (USTC) Army Element Command made no attempt to recover or rehabilitate me prior to consideration for separation.  Discharge was a first option of the USTC Army Element Command.  I also believe that issuance of an Article 15, and execution of the punitive actions for the same offense I was separated for, is not pursuant with Army Regulation. 

DETAIL:
(Para-1) The Command's recommendation for separation was recommended pursuant to Army Regulation (AR) 635-200, Chapter 14-12b; Pattern of Misconduct. Yet the command failed to provide evidence of a pattern. This was a single offense. The only other possible event in my U.S. Army (USA) career that could be considered misconduct was what the USTRANSCOM (USTC) Army Element Command called a "Network Compromise". As a trained Army Information Assurance Security technician, throughout both units I served, I can assure this was not true. It was a flag raised due to automated systems. Understanding this via my technical knowledge,  I waived all rights, and cooperatively committed to a full interrogation performed by Office of Special Investigations (OSI), USAF and a lie detector test. This included search & seizure of my personal (off-base) property, and dislocation from my current (at that time) role in USTC. OSI found inconclusive evidence of any wrong doing, or policy violations. Despite this I was still issued a "Letter of Warning" from the USTC Army Element Command. 

(Para-2) Since USTC  is a Joint Service operation, there was constant confusion of what regulations we were to follow. Throughout the punitive process I was consistently ill (possibly due to unlawful command influence) advised by senior enlisted personnel. This included a Marine MSG who I had not met before, but was considered the "Senior Enlisted Advisor" for the J3, the USAF command 1SG who had no prior U.S. Army experience. These senior enlisted personnel consistently advised me that this was a very generous handling of the incident, and I should concede to anything provided by the USTC Army Element Command. The person who lead these proceedings was, to my understanding, the USTC Army Element acting commander who was a LTC. I had no involvement with this LTC other than this and a prior situation. This was likely due to my reporting to a more senior officer - TCJ3 General Officer (O-8/9), TCJ3-G O-6, and various O-5 level subordinates to the TCJ3. 

(Para-3) The biggest surprise of this situation was that by the time I was officially informed of my Recommendation for Separation, I later found that the USTC, Chief of Staff had already approved the LTC's Request for Separation almost a week before. In fact the memorandums were all dated the same day as I had received my Field Grade Article 15 for this same incident.

(Para-4) I was fairly upset that I was being separated and had not been provided an opportunity to go through any rehabilitation effort, or provided a rehabilitive transfer. That the Army would just throw me away for a single (despite significant) mistake. The LTC had advised me to contact the Area Defense Counsel, an USAF legal group via my Article 15. Upon contacting this group they informed me that any drug use in the USAF was subject to automatic discharge, and that they could not provide assistance (due to not being familiar with AR). They recommended I contact the USA JAG office. At this time I contacted the JAG and SAP office at Ft. Leonard Wood. ASAP assured me that their (USA ASAP) Abuse program would be the same as the USAF, and that separation from the Army would only be considered for repetitive treatment/use or if I failed the program.  JAG informed me that it was possible that USTRANSOM did not have UCMJ authority since technically Army personnel were assigned to Ft. Leonard Wood and attached to USTC. However, all copies of the PCS orders did not clearly articulate who had UCMJ authority. JAG also informed me that at this point in the separation process I had the choice to either pursue a Court Martial, or allow the discharge to take place.


(Para-5) The USTC Army Element Command was obviously upset that I had contacted JAG out of Ft. Leonard Wood and had not used the Area Defense Counsel per his recommendations. I informed him of the situation which he was not willing to here (sic). I provided the Commander a request for an Administrative Separation Board hearing, from my legal counsel.  To my knowledge this was emailed directly to the Commander and provided by me in person.  Although it was nearly 9 days after the issued "Recommendation for Separation."  The request was denied and I was issued my discharge orders."

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: 080306
Discharge Received: 			   Date: 080328   Chapter: 14-12c(2)      AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: Army Element, U.S Transportation Command, Scott AFB, IL 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080306, wrongfully used cocaine (080204); reduction to E-1, forfeiture of $1,018.95 x 2 months (suspended), extra duty for 45 days and restriction for 60 days (suspended), (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 020604    Current ENL Term: 06 Years  3 month extension
Current ENL Service: 	05  Yrs, 09  Mos, 25  Days ?????
Total Service:  		05  Yrs, 10  Mos, 00  Days ?????
Previous Discharges: 	USAR-020507-020603/NA
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 25B10 Information System Operator/Analyst   GT: 124   EDU: GED   Overseas: Southwest Asia   Combat: Iraq (030409-040313), (050304-060114)
Decorations/Awards: AM, ARCOM-2, AGCM, NDSM, ICM, GWOTEM, GWOTSM, ASR, JSUA, MUC, VUA, USAFAM

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

VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The evidence of record shows that on 6 March 2008, the unit commander (LTC, CM, Army Element Deputy Commander), notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph   14-12, AR 635-200, by reason of pattern of misconduct for testing positive for cocaine (080214), with an under other than honorable conditions discharge.  He was advised of his rights.  
       
       On 21 March 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, demanded consideration of his case by an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.   
       
       On 6 March 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with an under other than honorable conditions discharge.

       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 during the period of enlistment under review, the issue and documents submitted with the application, the analyst determined that the discharge is improper. 
       
       The evidence of record shows  that the notification memorandum advised the applicant he was being recommended for an under other than honorable conditions discharge, but he was only entitled to a separation board if he had more than six years of service, which was improper.  The notification memorandum and the approval memorandum had a typewritten date of the same day (6 March 2008) which appears to be an error in dating as the company commander's signature on the notification memo was dated 12 March 2008 and the applicant acknowledged receipt on 12 March 2008.  
       
       Further, the applicant was given 7 duty days to respond or else he would be deemed to have waived his rights.  So, he should have had until at least Friday, 21 March 2008, to respond without being deemed to have waived his rights.  Even if you count calendar days rather than duty days, the separation authority's decision appears to be premature.  A counseling statement, dated 19 March 2008, indicates his separation was approved with an under other than honorable conditions discharge on 18 March 2008, and the plans for his out processing were discussed.  
       
       Absent a valid waiver of his rights, a decision could not have been made prior to 22 March 2008 (or 20 March 2008 if Saturday and Sunday were duty days).  The applicant indicated on the counseling form that he disagreed with the information presented in the counseling, and he was apparently told to direct his questions to legal counsel.  Also, the command improperly advised the applicant that he was not entitled to a separation board.  The applicant apparently didn't find out from his legal counsel until after the separation authority had decided to separate him, that he was entitled to a board.  On 21 March 2008, the applicant submitted a statement, to the trial defense services (TDS) requesting assistance, and acknowledged that he was entitled to a board and requested a board.  The command apparently ignored his request
       
       Additionally, it appears the command also violated his rights by prematurely deciding his separation action before the opportunity to exercise his rights had expired.  Because of the flawed records, the command was not entitled to any presumption of regularity.
       
       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 with the corresponding separation code of "JFF."  This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it.
       
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: NA

Witnesses/Observers: NA 
Exhibits Submitted: Online application, dated (111115); DA Form 4856 (Developmental Counseling Form), two (2) pages, dated (080319); Promotion Worksheet, dated (051019);The Army Distance Learning Program, three (3) pages, dated (051020); Chapter 14 Discharge Packet, eleven (11) pages; and the Official Military Personnel File (OMPF), thirteen (13) pages.  

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 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 the corresponding separation code of "JFF."  
        
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 the corresponding separation code of "JFF."
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: None

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 AR20110023179
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