Applicant Name:  ?????

Application Receipt Date: 2011/12/13	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, he would like for his discharge to be upgraded for the following reasons:

1.  He was separated for a crime that he was “formally” charged with not the one he was convicted.

2.  He was never convicted of the charge “DWI-DUI” 

3.  He was never given enough time to finish all the command referred programs.  

4.  He deserves an Honorable Discharge.  He served in Afghanistan and would still be serving today most likely, if the negligent separation had not occurred.  This will allow him to further advance himself to be a upstanding citizen. 

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: NIF
Discharge Received: 			   Date: 100812   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: D Company, 1-501st (Airborne), Fort Richardson, AK 

Time Lost: None

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:  18
Current ENL Date: 080418    Current ENL Term: 03 Years  16 weeks
Current ENL Service: 	02 Yrs, 03 Mos, 25 Days ?????
Total Service:  		02 Yrs, 03 Mos, 25 Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B1P 2C Infantryman   GT: 97   EDU: HS Grad   Overseas: SWA   Combat: Afghanistan (090228-100215)
Decorations/Awards: ARCOM, AGCM-3, NDSM, GWOTSM, ASR, OSR, NATO MDL, CIB 

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None listed by the applicant

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct— serious offense for wrongfully controlling a passenger vehicle while drunk, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 7 July 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action  and submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  
       
       On 23 July 2010, 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, and the issue 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, the applicant diminished the quality of the former Soldier’s 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.  
       
       Issues 1-2 are rejected.  The applicant contends that he was unjustly and unfairly discharged.  He was separated for a crime that he was “formally” charged with but not the one he was convicted.  He was never convicted of the charge “DWI-DUI”  However, 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 or documentation to support the contention that he was unjustly discharged.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case.  
       
              Issue 3 is rejected.  The applicant contends his discharge was improper because he was not given enough time to finish all the command referred programs.  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. 

              Issue 4 is rejected.  The appellant contends he deserves an Honorable Discharge.  He served in Afghanistan and would still be serving today and an upgrade would allow him to be an upstanding citizen.  The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.  Furthermore, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If reenlistment is desired, the applicant should contact the local recruiter to determine eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.  Moreover, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  Lastly, the analyst found no evidence of arbitrary or capricious actions by the command.  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: 30 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: An Online application, dated 1 December 2011 and DD Form 214

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 1    No change 4
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 AR20110024460
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